Forrest Cummings Green v. John W. Turner, Warden, Utah State Prison

Tenth Circuit

Forrest Cummings Green v. John W. Turner, Warden, Utah State Prison

409 F.2d 215, 1969 U.S. App. LEXIS 12701

CourtCourt of Appeals for the Tenth Circuit

DecidedApril 23, 1969

Docket9918_1

StatusPublished

Cited by5 cases

This text of 409 F.2d 215 (Forrest Cummings Green v. John W. Turner, Warden, Utah State Prison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Forrest Cummings Green v. John W. Turner, Warden, Utah State Prison, 409 F.2d 215, 1969 U.S. App. LEXIS 12701 (10th Cir. 1969).

Pincite

Opinion

PER CURIAM.

This is an appeal from the denial of a petition for a writ of habeas corpus by the Federal District Court. In 1967, Green pleaded guilty to violation of 76-7-6, Utah Code Annotated (1953), assault with a deadly weapon, a felony. He now contends that he should have been charged with the misdemeanor of exhibiting a deadly weapon in an angry and threatening manner in violation of 76-23-3, Utah Code Annotated (1953) since both statutes charge the same offense.

A conviction under the felony statute requires proof of an intent to do bodily harm. State v. Potello, 42 Utah 396, 132 P. 14 (1913). Proof of such intent is not necessary to sustain a conviction under the misdemeanor statute, nor is assault an element. Clearly the two statutes charge different offenses. However, since Green does not contend that the two statutes are being applied with discrimination, this matter raises no issue cognizable in federal habeas corpus. Handley v. Page, 398 F.2d 351 (10th Cir. 1968); Burns v. Crouse, 339 F.2d 883 (10th Cir. 1964), cert. denied 380 U.S. 925, 85 S.Ct. 930, 13 L.Ed.2d 811 (1965).

By his plea of guilty, Green admitted violation of the felony. A plea of guilty is itself a conviction and conclusive. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Miles v. United States, 385 F.2d 541 (10th Cir. 1967). If Green attempts to show that the plea was involuntary or that he did not understand the nature of the charge, he must first present such claims to the state courts. 28 U.S.C. § 2254.

Although Green has been notified that the court was considering summary affirmance and has been given an adequate opportunity to address the merits of the cause, he has not done so. See Garrison v. Patterson, 391 U.S. 464, 88 S.Ct. 1687, *217 20 L.Ed.2d 744 (1968). A review of the files and record in this cause satisfies us that the issues are so unsubstantial as not to require further argument. The judgment is affirmed on the court's own motion.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

This is an appeal from the denial of a petition for a writ of habeas corpus by the Federal District Court. In 1967, Green pleaded guilty to violation of 76-7-6, Utah Code Annotated (1953), assault with a deadly weapon, a felony. He now contends that he should have been charged with the misdemeanor of exhibiting a deadly weapon in an angry and threatening manner in violation of 76-23-3, Utah Code Annotated (1953) since both statutes charge the same offense.

A conviction under the felony statute requires proof of an intent to do bodily harm. State v. Potello, 42 Utah 396, 132 P. 14 (1913). Proof of such intent is not necessary to sustain a conviction under the misdemeanor statute, nor is assault an element. Clearly the two statutes charge different offenses. However, since Green does not contend that the two statutes are being applied with discrimination, this matter raises no issue cognizable in federal habeas corpus. Handley v. Page, 398 F.2d 351 (10th Cir. 1968); Burns v. Crouse, 339 F.2d 883 (10th Cir. 1964), cert. denied 380 U.S. 925, 85 S.Ct. 930, 13 L.Ed.2d 811 (1965).

By his plea of guilty, Green admitted violation of the felony. A plea of guilty is itself a conviction and conclusive. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Miles v. United States, 385 F.2d 541 (10th Cir. 1967). If Green attempts to show that the plea was involuntary or that he did not understand the nature of the charge, he must first present such claims to the state courts. 28 U.S.C. § 2254.

Although Green has been notified that the court was considering summary affirmance and has been given an adequate opportunity to address the merits of the cause, he has not done so. See Garrison v. Patterson, 391 U.S. 464, 88 S.Ct. 1687, *217 20 L.Ed.2d 744 (1968). A review of the files and record in this cause satisfies us that the issues are so unsubstantial as not to require further argument. The judgment is affirmed on the court's own motion.

Cite This Page — Counsel Stack

Bluebook (online)

409 F.2d 215, 1969 U.S. App. LEXIS 12701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forrest-cummings-green-v-john-w-turner-warden-utah-state-prison-ca10-1969.

Opinion

Related

Cite This Page — Counsel Stack