Ambrose Yesterday v. United States

Ninth Circuit

Ambrose Yesterday v. United States

442 F.2d 1020

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 3, 1971

Docket25632_1

StatusPublished

Cited by2 cases

This text of 442 F.2d 1020 (Ambrose Yesterday v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ambrose Yesterday v. United States, 442 F.2d 1020 (9th Cir. 1971).

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Opinion

PER CURIAM:

In 1936 petitioner was indicted for first-degree murder under 18 U.S.C. § 548 (1934 ed.), pleaded guilty to a reduced charge of second-degree murder, and was sentenced to forty years’ imprisonment. In 1969 he filed a motion under 28 U.S.C. § 2255 alleging that his plea was not made with a full understanding of the nature of the charge and the possible consequences of the plea. The district court held an evidentiary hearing. The records of petitioner’s arraignment, plea, and sentencing were introduced, and testimony was received from the only two surviving participants in the proceedings — petitioner and the chief deputy clerk of court at the time.

Petitioner testified that he was not told, and did not know, the difference between first- and second-degree murder, nor that he could be sentenced to imprisonment for as much as forty years on a plea of guilty to the latter offense. He testified that he was told that if the charge were reduced he would be given a light sentence.

The records of petitioner’s arraignment and sentencing are silent as to what if anything he may have been told about the nature of the charge of second-degree murder or the consequences of a plea of guilty to that charge.

Mr. Scruggs, the chief deputy clerk, testified that he had no present recollection of petitioner’s arraignment and sentencing. He testified further, however, that it was the invariable practice of the sentencing judge to explain both the charge and the possible penalty to the defendant before receiving a guilty plea to a charge of this seriousness.

Relying upon the presumption of regularity and the testimony of Mr. Scruggs, and expressly rejecting petitioner’s testimony as unreliable, the district court found that petitioner entered his plea freely, voluntarily, and with the requisite knowledge.

*1021 Petitioner argues that when the record is silent, as here, the burden rests upon the government to establish that a guilty plea was properly taken, and that the government failed to carry its burden. Assuming that the burden of persuasion is to be allocated as petitioner suggests, the evidence was sufficient to sustain the district court’s finding.

Affirmed.

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PER CURIAM:

In 1936 petitioner was indicted for first-degree murder under 18 U.S.C. § 548 (1934 ed.), pleaded guilty to a reduced charge of second-degree murder, and was sentenced to forty years’ imprisonment. In 1969 he filed a motion under 28 U.S.C. § 2255 alleging that his plea was not made with a full understanding of the nature of the charge and the possible consequences of the plea. The district court held an evidentiary hearing. The records of petitioner’s arraignment, plea, and sentencing were introduced, and testimony was received from the only two surviving participants in the proceedings — petitioner and the chief deputy clerk of court at the time.

Petitioner testified that he was not told, and did not know, the difference between first- and second-degree murder, nor that he could be sentenced to imprisonment for as much as forty years on a plea of guilty to the latter offense. He testified that he was told that if the charge were reduced he would be given a light sentence.

The records of petitioner’s arraignment and sentencing are silent as to what if anything he may have been told about the nature of the charge of second-degree murder or the consequences of a plea of guilty to that charge.

Mr. Scruggs, the chief deputy clerk, testified that he had no present recollection of petitioner’s arraignment and sentencing. He testified further, however, that it was the invariable practice of the sentencing judge to explain both the charge and the possible penalty to the defendant before receiving a guilty plea to a charge of this seriousness.

Relying upon the presumption of regularity and the testimony of Mr. Scruggs, and expressly rejecting petitioner’s testimony as unreliable, the district court found that petitioner entered his plea freely, voluntarily, and with the requisite knowledge.

*1021 Petitioner argues that when the record is silent, as here, the burden rests upon the government to establish that a guilty plea was properly taken, and that the government failed to carry its burden. Assuming that the burden of persuasion is to be allocated as petitioner suggests, the evidence was sufficient to sustain the district court’s finding.

Affirmed.

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442 F.2d 1020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ambrose-yesterday-v-united-states-ca9-1971.

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