Greene v. United States , 374 F. Supp. 996 ( 1974 )

MEMORANDUM AND ORDER

HARPER, District Judge.

The petitioner on September 18, 1973, filed a motion under 28 U.S.C.A. § 2255, seeking to vacate the sentence on Count 1 in 69Cr 94(1), contending that he was not represented by counsel at the time of his guilty plea, and that his sentence of two years should be set aside. In addition, the petitioner seeks to proceed in forma pauperis, and petitioner is granted leave to proceed in forma pauperis.

Attached hereto as Exhibit 1 is a Xeroxed copy of the clerk’s minutes in this case. These minutes disclose that this petitioner was before the Court on September 5, September 12 and September 19, 1969. The transcript in the file covering these three dates discloses that on September 5th the defendant (petitioner) appeared without counsel; that upon inquiry from the Court he stated that his mother was going to secure counsel to represent him, and the case was passed to September 12th to give the petitioner an opportunity to obtain an attorney, and the Court advised him that if on September 12th he did not have a lawyer the Court would appoint one for him.

The transcript further discloses that on September 12th, when he appeared before the Court for the second time he did not have a lawyer and wanted to enter a plea of guilty as to the charge against him of attempt to escape from Federal custody, and stated in some details what had occurred with respect to the attempted escape. The Court advised the petitioner at that time that in view of his age, the petitioner being 22 years old, that he would not let him represent himself, and advised him that if he would sign the papers for the appointment of counsel that the Court would appoint an attorney to represent him and pass the case until the next Friday, September 19th. Attached is Exhibit 2, being the papers which were prepared by the clerk’s office in conjunction with the defendant, being “CJA Form 2, Order Appointing Counsel”, which was signed by the petitioner on that date, and on that date the Court appointed Attorney William W. Sabath to represent him.

On the following Friday, September 19th, the transcript discloses that the petitioner was again before the Court; that at that time Francis Murrell, an assistant district attorney, advised the Court that the petitioner was in court for arraignment, being represented by William W. Sabath, who was court-appointed ; that the indictment charged escape from Federal custody; and that the Court at that time asked, “What is the plea?” Mr. Sabath, his attorney, replied, “The plea is guilty, your Honor, as charged.” The Court then asked, “Is that your plea, Mr. Greene?” The defendant answers, “Yes, sir.”

Other questions were asked the defendant at that time, and then the Court asked the defendant if he wanted the indictment read or wanted to waive the reading. The attorney advised that they would waive that, and the Court asked of the defendant, “What happened? I believe you told me, though, what happened in this instance last week.” The defendant answered that he did. The Court then accepted the petitioner’s plea. After the plea was taken, Mr. Sabath, petitioner’s attorney, made a statement to the Court with respect to the charge, following which the Court asked the defendant, “Do you have anything to say, Mr. Greene, before the Court passes sentence, or any reason you know of why the Court shouldn’t pass sentence ?” Mr. Greene answered, speaking to the Court at some length.

Before the Court imposed the sentence, it pointed out that the petitioner was under a twenty-year sentence for bank robbery, but that that sentence was on appeal, and the Court said in part: “In your instance I will say to you that if you were before me, and with the twenty years that you have in front of you on the other charge, in view of your age, I would run it concurrent, but I have nothing to run it concurrent with now, because the sentence that I can run it concurrent with, that is appealed. Should it be disposed of during the time that this Court has any jurisdiction over the matter, I would consider changing the sentence, but the chances are it won’t be because it will probably be beyond the end of the time. I think I have 120 days, is all.”

The Court then further said, “If the other matter becomes final while this Court still has jurisdiction of it, I will make it run concurrent.”

The twenty-year sentence for bank robbery was later affirmed, and thereafter the petitioner was before another court on an attempted escape charge and was given a five-year consecutive sentence. Attached as Exhibit 3 is a copy of the records of the United States Department of Justice, Bureau of Prisons, which the Court had the Probation Office secure for him with respect to the petitioner, and these records show that the Bureau of Prisons, after the bank robbery sentences became final, made the sentence of two years imposed by this Court run concurrent with the twenty-year sentence he had been given for bank robbery. The two-year sentence involved in this case has long ago been completed.

The petitioner in his brief filed in this case on November 5, 1973, following the filing of a memorandum by the district attorney’s office, discusses some other matters, but the Court shall not deal with those because they are not a part of the 2255 petition filed in this case.

The exhibits attached hereto and the transcript in the file in this case, disclose that the petitioner’s allegation that he was not represented by counsel at the time of his guilty plea is untrue. When the petitioner filed his memorandum on November 5, 1973, he asked the Court to appoint him an attorney, and while in many cases the Court does appoint attorneys to represent like petitioners in 2255 cases, in this case the records in this case disclose that the petitioner’s claims are without merit, and this is not the type of case in the Court’s opinion where an attorney should be appointed.

Accordingly, petitioner’s motion to vacate judgment and sentence is overruled in all particulars.

EXHIBIT 1

EXHIBIT 2

EXHIBIT 3