Hugh Howard Polk v. United States

451 F.2d 1155, 1971 U.S. App. LEXIS 6751

Opinions

PER CURIAM:

This appeal is taken from an order of the district court denying the motion of a federal prisoner to vacate sentence pursuant to 28 U.S.C. § 2255. We affirm.

Appellant is presently serving a 15-year sentence for burglarizing an FDIC insured bank, a violation of 18 U.S.C. § 2113(a). After initially pleading not guilty at his arraignment, at which he was represented by counsel, appellant appeared in open court, waived counsel, and changed his plea to guilty. In his § 2255 motion, appellant alleged that his waiver of counsel was not an intelligent decision, that he was incompetent due to intoxication at that time, and that he acted in reliance upon the promise of an F.B.I. agent that he would be sentenced to no more than five years.

The district court denied relief without holding an evidentiary hearing, making findings of fact from the transcript of appellant’s re-arraignment, from various affidavits filed with the government’s response, and from its own observation of the proceedings. The court below found that appellant intelligently waived counsel, that he was not intoxicated at all or not to an extent sufficient to affect his comprehension, and that his plea was not based upon ány promises, deals, or bargains as to the length of sentence. A reading of the transcript reveals that appellant was questioned thoroughly by the court concerning his motives for waiving counsel and changing his plea. Despite the advice given by the court, appellant repeatedly stated that he wished to proceed without counsel. Upon further questioning by the court, appellant stated that he was pleading guilty because he was guilty and that he was in no way induced to change his plea. Appellant’s answers were lucid and responsive to the questions asked, with nothing to indicate lack of competence. Based upon this record and the district court’s personal observation, there was no need for the court to hold an evidentiary hearing, 28 U.S.C. § 2255; Berlanga v. United States, 5th Cir. 1968, 394 F.2d 615; Pursley v. United States, 5th Cir. 1968, 391 F.2d 224; Helpman v. United States, 5th Cir. 1967, 373 F.2d 401.

Perceiving no clear error in the findings of the district court nor error in its application of the law, the judgment below is affirmed.¹

Affirmed.

Footnotes

1

. This footnote responds to the dissent herein:

This is petitioner’s second Section 2255 case. The first, filed approximately a year earlier pro se, was based on the allegation that James Salmond (sic), FBI Agent, promised petitioner that he would not receive a sentence in excess of 5 years if he changed his plea to guilty. District Judge Cox denied the motion for relief, on the basis of petitioner’s sworn testimony when he pled guilty and an affidavit of FBI Agent Sammon specifically denying that he had ever made such an arrangement with petitioner. In this first petition Polk made no mention or allegation whatsoever relating to being intoxicated when he entered his plea of guilty. Polk entered a notice of appeal but District Judge Cox held the appeal to be frivolous and denied him the right to proceed as a pauper. Judge Coleman of this Court later denied petitioner’s pro se application for leave to appeal in forma pauperis.

Now Polk has filed this, his second Section 2255 motion pro se, alleging again that he was induced by FBI Agent Sam-mon to enter a plea of guilty on a promise that he would receive a sentence of no more than 5 years. However, this second motion contains allegations that lie was intoxicated when he entered his plea of guilty. The transcript of the proceedings at the time of his guilty plea shows that he was carefully and thoroughly interrogated, at length, by District Judge Cox and in that response to the Court’s question, “Has any person whatsoever, state or federal officer, investigating officer, prosecuting attorney or any official of that sort at any time made you any sort of promise to induce you to tender this plea of guilty?”, answered “No sir.” He said he was tendering his plea freely and voluntarily, without any sort of condition or string attached to the plea. These answers were made by the defendant in the witness chair under oath. Earlier in open court, prior to being sworn, he had freely stated that he had not been induced to change his plea to guilty with any kind of string on it and as he said, “Well, Xour Honor, nobody has said anything to me like that. I am guilty of it and I am ready to plead guilty and do my time on it.”

District Judge Cox denied petitioner’s second Section 2255 motion with written findings of fact and conclusions of law.

He stated that he had reviewed the transcript of the proceedings relative to petitioner entering a plea of guilty and the transcript of proceedings at the time of sentence. He found that “from the Court's own interrogation and observation of the petitioner that he was not intoxicated or not intoxicated to any extent to be unable to comprehend and understand what he was doing on said date” [i. e., the date of pleading guilty].

That he was able to make such a finding from his own personal observation is apparent from the 13-page transcript of the proceedings which we have likewise reviewed. A more careful and consid erate interrogation of a defendant prior to acceptance of a plea of guilty could not be imagined.

Now our dissenting brother would have us remand the case for an evidentiary hearing in the face of the record and the Judge’s findings based on personal observation, because of a letter which petitioner has attached to his brief in this. Court, from Attorney Dan M. Lee of Ray, Lee and Moore, Jackson, Mississippi, to Polk in which he states that Polk was “obviously intoxicated” when he saw him at the water fountain after he had pled guilty. The record discloses that Attorney Lee’s partner, W. S. Moore, appeared with the defendant at the time of sentence and that neither Attorney Moore nor the defendant said anything whatever about the defendant having entered his plea while intoxicated or that the plea was made pursuant to a “deal” with the FBI Agent.

The contentions of petitioner are so incredible and unbelievable under the circumstances we have described, that they do not justify a bearing and the District Judge was fully warranted under Section 2255 in denying relief because the motion and the files and record of the case, as well as the Judge’s own personal observation, conclusively show that the prisoner is entitled to no relief. The letter of Attorney Lee is not a part of the record and was first seen by us as an attachment to appellant’s pro se brief.

In our view it would be wasteful of judicial time to remand the ease for a hearing as to whether the defendant was intoxicated when he entered his plea, where the same District Judge who accepted the plea after lengthy interrogation has made a finding that the defendant was not intoxicated. The issue of intoxication having been passed on by the District Judge who saw, heard and observed the defendant for a considerable period of time when the plea was entered convinces us that there is no merit to this contention, and that the case was properly decided.