Berube v. United States

284 F. Supp. 1, 1968 U.S. Dist. LEXIS 7728
CourtDistrict Court, C.D. California
DecidedApril 25, 1968
DocketCiv. No. 68-151
StatusPublished
Cited by14 cases

This text of 284 F. Supp. 1 (Berube v. United States) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berube v. United States, 284 F. Supp. 1, 1968 U.S. Dist. LEXIS 7728 (C.D. Cal. 1968).

Opinion

ORDER DENYING MOTION TO VACATE AND SET ASIDE SENTENCE PURSUANT TO 28 U.S. C.A.‘ § 2255.

HAUK, District Judge.

Petitioner, Allan James Berube, a prisoner at the United States Penitentiary in Atlanta, Georgia, is here upon motion to vacate his judgment of conviction for assaulting federal officers, pursuant [2]*2to Section 2255 of Title 28, United States Code.1 He appears in propria persona.

Allowed to proceed in forma pawperis, Berube seeks to vacate his judgment of conviction upon a plea of guilty on the following grounds: (1) that he was mentally incompetent at the time of the offense; (2) that he was mentally incompetent at the time he entered his plea of guilty; (3) that the Court refused his request to be sentenced under Section 4208(b) of Title 18, United States Code; and (4) that he was promised leniency in return for his plea of guilty.

FACTS AND PROCEEDINGS CONCLUSIVELY SHOWN BY FILES AND RECORDS

A complaint filed with the United States Commissioner on January 10, 1967, by the Federal Bureau of Investigation alleged that petitioner Berube assaulted two special agents of the Federal Bureau of Investigation while they were engaged in the performance of their official duties. Petitioner was in custody at the prison ward of the Los Angeles County General Hospital on the day the complaint was filed, and the Commissioner continued the confinement by committing petitioner to the custody of the United States Marshal.

On January 18, 1967, the Federal Grand Jury returned a one count Indictment2 charging that on January 7, 1967, petitioner, with an automatic pistol, forcibly assaulted, resisted and interfered with Norbert R. Linker and Jerome K. Crowe while they were engaged in the performance of their official duties as special agents of the Federal Bureau of Investigation, in violation of 18 U.S.C.A. § 111.3

[3]*3Petitioner was arraigned before this Court on January 23, 1967, and, after conferring with his appointed counsel, Joseph P. Bergman, he entered a plea of not guilty to the one count Indictment. Subsequently, on February 6, 1967, petitioner again appeared before this Court and, through his counsel, moved for a change of plea:

“THE CLERK: 193 — Criminal, USA vs. Allan James Berube, B-e-r-u-b-e, change of plea.
“MR. BREGMAN: Joseph Paul Bregman appearing for Berube.
“THE COURT: This is a one-count Indictment charging assault on a Federal officer in violation of 18 U.S.Code 111. Is it your wish to change your plea from not guilty to guilty?
“THE DEFENDANT: Yes, sir.
“THE COURT: Is that your true name, Allan James Berube?
“THE DEFENDANT: Yes, sir.
“THE COURT: Have you received a copy of the Indictment?
“THE DEFENDANT: I have read it, sir.
“THE COURT: Does the defendant waive further reading ?
“MR. BREGMAN: So waive.
“THE COURT: Is the defendant ready to enter his plea in this matter, change his plea, I should say?
“MR. BREGMAN: Yes, your Honor.
“THE COURT: In case No. 193, a one-count Indictment, to the charge therein as I have indicated, what is your plea, guilty or not guilty?
“THE DEFENDANT: Guilty.
“THE COURT: Have you discussed with your attorney the facts and circumstances surrounding the offense to which you are pleading guilty ?
“THE DEFENDANT: Yes.
“THE COURT: Has he explained to you the maximum penalty the Court may impose ?
“THE DEFENDANT: Yes.
“THE COURT: What is it?
“THE DEFENDANT: $10,000 and/or ten years.
“THE COURT: Or both?
“THE DEFENDANT: Or both.
“THE COURT All right. Is this your free and voluntary act, this plea?
“THE DEFENDANT: Yes.
“THE COURT: Has there been any promise of reward or special treatment made to you ?
“THE DEFENDANT: No.
“THE COURT: Any threat of coercion or violence used against you?
“THE DEFENDANT: No.
“THE COURT: You are pleading guilty because you are and for no other reason ?
“THE DEFENDANT: Yes.
“THE COURT: The Court will find you convicted upon your plea of guilty and set the probation hearing for February 27th at 2:00 p. m. in this courtroom.
“THE CLERK: To remain on bond, your Honor?
“THE COURT: To remain on bond—
“MR. BROWNING: He is in custody.
“THE COURT: What is his bond?
“MR. BROWNING: $50,000.
“THE COURT: All right.” (Rep.Tr., Feb. 6, 1967, pp. 12-14)

[4]*4When the petitioner appeared for sentencing on February 27, 1967, the Court inquired of him :

“THE CLERK: Item No. 4, United States of America v. Allan James Berube.
“THE COURT: All right. You are here on your plea of guilty to assaulting a federal officer, Code Section. 18 USC 111.
“It is time for probation and sentencing, consideration and sentencing.
“Do you have anything to say before I pass sentence?
“MR. BREGMAN: I would like to say something on behalf of Mr. Berube.
“I have read the report and it is obvious that there is a crisis he will be faced with after the disposition of this one. It is quite serious. There are a number of charges, and I am informed that there are also a number of charges that don’t appear in the probation report which will be brought once he does get back to North Carolina.
“What is conspicuously absent in the probation report is the lack of a psychiatric report which has never existed in the entire background of Mr. Berube.
“He has been incarcerated for a greater time than he has been outside the Air Force. In fact, I believe as soon as he did leave—
“THE COURT: I know when he was in jail he made some false ID cards.
“MR. BREGMAN: That's precisely it, your Honor. I would recommend that insofar as all of the conduct that he is charged with his been as an adult, primarily — the juvenile record is not there —I would ask that the court consider 4208(b) for further consideration.
“I believe that he is faced here with a fantastic number of years, especially with the charge of kidnaping.

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284 F. Supp. 1, 1968 U.S. Dist. LEXIS 7728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berube-v-united-states-cacd-1968.