Oliver R. Norris v. Lawrence E. Wilson, Warden, California State Prison, San Quentin, California , 378 F.2d 324 ( 1967 )

BARNES, Circuit Judge:

This is an appeal from the denial of a writ of habeas corpus in the district court. (28 U.S.C. §§ 2241, 2253.)

On February 14, 1951, appellant was arrested for the armed robbery of a pharmacy in Stockton, California. He had been shot three times in the stomach and was taken to a hospital for emergency treatment. An operation was allegedly performed on him, using sodium pentothal as an anaesthetic.

On March 19, 1951, appellant was arraigned on two charges of armed robbery, but the arraignments were continued to March 20, 1951, so that an attorney could be appointed to represent appellant at the arraignments. At appellant’s request, the public defender was appointed to represent him. A preliminary examination was waived by appellant, and he was bound over for trial.

On March 22, 1951, appellant, represented by his attorney, pleaded guilty to two counts in Information #10749 and one count in Information #10750. The matter was referred to the probation officer (Calif.Penal Code § 1203) and April 5th, 1951 was the date set for pronouncing sentence. At the sentencing, on April 5th, 1951 appellant, with his counsel present, expressly admitted he was in possession of a deadly weapon at the time he committed the two robberies with which he was charged. His attorney first admitted such possession for him, and appellant then expressly personally admitted such possession. Each armed robbery charged was found to be robbery in the first degree.

Appellant’s counsel then spoke on appellant’s behalf — urging because of the plea of guilt that the court impose concurrent, rather than consecutive, sentences. The district attorney opposed concurrent sentences, pointing out that the two first degree armed robberies occurred on different dates in different state jurisdictions. The vigor of counsel representing appellant is shown by the fact the judge continued the sentencing one day, to permit appellant’s counsel to supply authorities on his contention that the court had no authority to order any sentence consecutive to a life sentence.

On April 6, 1951, appellant was sentenced to three consecutive sentences. The probation report indicates, in its recital of previous arrests and admitted convictions, why consecutive sentences had been recommended by the probation officer; and gives some indication why such a recommendation was followed by the trial judge.

Appellant in the court below originally urged that he had been improperly denied counsel. When he learned that Escobedo did not apply retroactively (Carrizosa v. Wilson, 244 F.Supp. 120 (D.C. 1965)), he stated he would “without conceding, not pursue this issue further.” That his judgment was good was proved by the Supreme Court decision in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), holding the Escobedo rule did not apply to cases tried before June 22, 1964.

Appellant’s second contention is that his pleas of guilty were induced by (a) two alleged incriminating statements, one signed by him, and the second by his brother; (b) that he had been told his brother had already pled guilty.

This circuit has repeatedly held to the general rule that convictions which follow pleas of guilty are based solely and entirely upon the pleas entered, not upon any evidence which may have been previously acquired. “In the present case no confession was used because the plea of guilty in open court dispensed with proof of the crime.” Townsend v. Burke, 334 U.S. 736, 738, 68 S.Ct. 1252, 1254, 92 L.Ed. 1690 (1948). Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965); Davis v. United States, 347 F.2d 374, 375 (9th Cir. 1965); Harris v. United States, 338 F.2d 75, 80 (9th Cir. 1964); Sullivan v. United States, 315 F.2d 304, 305 (10th Cir. 1963); Randall v. United States, 314 F.2d 800 (10th Cir. 1963); Bailey v. United States, 312 F.2d 679 (10th Cir. 1963); Thomas v. United States, 290 F.2d 696, 697 (9th Cir. 1961); Watts v. United States, 107 U.S.App.D.C. 367, 278 F.2d 247 (1960); United States v. French, 274 F.2d 297 (7th Cir. 1960); Barnhart v. United States, 270 F.2d 866 (10th Cir. 1959); Eberhart v. United States, 262 F.2d 421 (9th Cir. 1958); United States v. Sturm, 180 F.2d 413 (7th Cir. 1950); Kinney v. United States, 177 F.2d 895 (10th Cir. 1949).

As recently as June 29, 1966, this court rendered its opinion in Hardee v. Wilson, 363 F.2d 848, wherein we stated:

“At the time of the trial, appellant, represented by private counsel of his choice, pleaded guilty. Thus, because of his plea of guilty made when represented by counsel, the appellant stands convicted, not because of a confession or statement, but by reason of his plea alone. This forecloses any collateral attack. Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965); Thomas v. United States, 290 F.2d 696-697 (9th Cir. 1961).” Id. at 849.

Appellant makes broad charges that 'the pleas were the product of coercion and promise of leniency, which was not controverted by the return.” The official reporter’s transcript of the sentencing hearing, attached to the state’s return as Exhibit F, shows precisely the contrary state of facts.

The pleas of guilty may well have been decided upon by appellant, with the advice and encouragement of his counsel because of their factual knowledge of the crimes charged, and that appellant’s brother had confessed, involving appellant. But no coercion whatever is shown. The confession of a joint participant in a crime may influence a defendant, but it does not coerce him in a legal sense.

Appellant, a man seriously wounded in his gun fight with a police officer, may have been given sodium pentothal at a hospital on February 15, 1951, to permit an operation upon him in an attempt to save his life. We assume he was, but there is not the slightest indication in the allegations of fact of any effect of this drug, or any other coercion on appellant (a) when he allegedly signed his own incriminating statement on March 1, 1951 (which we assume was done); (b) when he pled guilty over a month later; (c) at his sentencing; nor (d) when he reaffirmed his guilt to the probation officer after his plea and before his sentencing.

Appellant’s reference to the fact that “when he appeared in court for the preliminary examination, the only evidence that had been entered to bind him over to a higher court had been two confessions” is wholly inaccurate. There was no preliminary examination. The record discloses this appellant waived it. If he refers to arraignment, he is also inaccurate and incorrect, as no evidence was introduced save the three pleas and the admission that appellant was armed with a deadly weapon.

There is a recognized exception to the general rule that this court recognizes. In Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, at 118, 76 S.Ct. 223, at 224, 100 L.Ed. 126 (1955), Mr. Justice Black stated:

“[a] conviction * * * on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause; * * * where a denial of [this] constitutional protection is alleged in an appropriate proceeding by factual allegations not patently frivolous or false on a consideration of the whole record, the proceedings should not be summarily dismissed merely because a state prosecuting officer files an answer denying some or all of the allegations.”

The fact recital in the Claudy case reveals clearly a charge of violent police action and an overreaching on the part of the prosecutor. Herman charged he was “grabbed by the neck” by a state trooper, who “threatened to choke him if he did not confess, and there were threats against the safety of his wife and daughter.” (Id., p. 119, 76 S.Ct. p. 225.) Herman was interviewed seventy-two intermittent hours; he had no attorney; and he was not informed he could have counsel. He waived indictment and agreed to plead guilty to three charges. A month later the prosecuting attorney demanded he admit his guilt to some thirty charges, involving a maximum sentence of 315 years in prison. He did so plead.

While in Claudy, the threats and physical violence were denied by the prosecuting officers, the other charges were not. Such a partial denial is not enough, said the Supreme Court — Herman was entitled to a hearing of his charges.

We cannot find any similarity in the factual allegations of the petition before us. Much is conclusionary or immaterial. Here Norris complains not of being rushed into a plea, but of the court’s delay in taking it. His interrogation is described as “merciless”; yet on the day it occurred he signed nothing. On a later date, some sixteen days after the injection of sodium pentothal, and after he was allegedly shown his brother’s signed confession implicating him, he allegedly signed his own confession. (As to the effect of drugs and the per se incompetency of subsequent pleas or confessions, see Maez v. United States, 367 F.2d 139 (10th Cir. 1966).) Twenty days later, when represented by able counsel, he entered his plea of guilty.

No allegation of threats or physical abuse are here made. The only “taint” to appellant’s confession is that “it was allegedly based” on alleged statements made by appellant when he was allegedly subjected to sodium pentothal. Nowhere does it factually appear that “the pleas entered were the coerced product of a tainted confession.” Nowhere does appellant urge his innocence or state his confession was untrue.

Here there was no trial of the case, and no record thereof to bring before the court. The only record as to the proceedings when the pleas were received was before the district court in its entirety. In our Thomas v. United States case, supra, there was a denial of a claim of unlawful search, without requiring a hearing.

The trial judge, assessing the vague, conclusionary and immaterial facts alleged in petitioner’s petition, was satisfied that petitioner intelligently entered his plea of guilty with the advice and cooperation of counsel, and without compulsion of any kind, and that no hearing, was required. We agree.

Affirmed.