Ketchum v. United States

327 F. Supp. 768, 1970 U.S. Dist. LEXIS 9070
CourtDistrict Court, D. Maryland
DecidedDecember 22, 1970
DocketCiv. No. 70-705-K
StatusPublished
Cited by7 cases

This text of 327 F. Supp. 768 (Ketchum v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ketchum v. United States, 327 F. Supp. 768, 1970 U.S. Dist. LEXIS 9070 (D. Md. 1970).

Opinion

MEMORANDUM AND ORDER

FRANK A. KAUFMAN, District Judge.

Ketchum, presently serving consecutive sentences of eight and seven years imposed upon him in this Court by Judge Winter (then a District Judge) on April 30, 1965, seeks relief herein under 28 U.S.C. § 2255 for the second [770]*770time. The history of Ketchum’s tender and of Judge Winter’s acceptance of the guilty pleas of Ketchum and of his co-defendant, Frances Irene Stanley, is set forth in detail in this Court’s opinion in United States v. Ketchum, 272 F.Supp. 897 (D.Md.1967), aff'd, Mem.Dec.No. 12,035 (4th Cir. 1968), and will therefore not be again repeated in this opinion.

Ketchum, in this second § 2255 proceeding, states no factual contentions at this time which require an evidentiary hearing in accordance with the standards enunciated in Raines v. United States, 423 F.2d 526 (4th Cir. 1970). Nor do Ketchum’s contentions that his guilty pleas should not have been accepted by Judge Winter or that there was any violation of Federal Criminal Rule 11 raise any issue which was not substantially posed and determined in Ketchum’s first § 2255 proceeding.

Ketchum does raise three issues in this second section 2255 proceeding which have not been previously stated or considered by the Fourth Circuit or by this Court. First, he contends that he did not commit, or aid and abet the commission of, the two alleged acts of forgery, because his co-defendant used her true name as payee and endorser. Ketchum states in his petition that the two checks were blank when stolen and were subsequently filled in by Frances Irene Stanley. Such filling in, in and of itself, constitutes forgery, even if the forger uses her own name as payee and endorser. Cf. United States v. Clay, 408 F.2d 1028 (4th Cir. 1969); United States v. Metcalf, 388 F.2d 440 (4th Cir. 1968); Jones v. United States, 234 F.2d 812 (4th Cir. 1956), cert. denied, 355 U.S. 936, 78 S.Ct. 419, 2 L.Ed.2d 418 (1958). And, of course, if, as stated by the prosecutor (Tr. 19-20), as not controverted by Ketchum or by Mrs. Stanley at the time of the sentencing, and as seemingly accepted by Ketchum at page 3 of his brief herein, the checks were in blank when they were stolen, the conclusion is compelled that the maker’s signature was later added.

Second, Ketchum complains that Judge Winter erred in permitting the Assistant United States Attorney to inform him (at Tr. 27-28) that, when Ketchum was arrested,

[i]n the car were found a number of tools: Two pry bars, one large screw driver, three punches, one pair of bolt cutters, one pair of handcuffs, one black pistol shoulder holster, one brown belt, three rubber gloves, one cutting torch, one eight-pound sledge hammer with a cut-off handle.
In his apartment room or hotel room, there was recovered a .38 special Smith and Wesson revolver.

Judge Winter’s unsuccessful efforts to persuade Stanley and Ketchum to have counsel are set forth in United States v. Ketchum, 272 F.Supp. supra at 899-900. Ketchum showed no hesitancy in informing Judge Winter that the Assistant United States Attorney erred in stating the Cadillac, which Ketchum was driving when arrested, had been stolen. Judge Winter and the government prosecutor accepted that correction (Tr. 26, 28-29).1 Ketchum raised no question on the day he was arraigned and sentenced concerning any violation of his Fourth Amendment rights in connection with the discovery by the Oklahoma police at the time of his arrest of the contents in the trunk of his car or of the weapon in his room. He did, however, state those [771]*771contentions in his first section 2255 proceeding. United States v. Ketchum, 272 F.Supp. supra at 906. There, this Court concluded (at 906-907) that Ketchum’s statement to the F.B.I. and his guilty pleas were the voluntary acts of a man who clearly comprehended what he was saying and doing and that the validity of certain of the procedures employed by the Oklahoma law enforcement officials when Ketchum was arrested did not need to be determined because of the intervening passage of time between their occurrences and Ketchum’s own decision to confess and subsequently to plead guilty.

This Court, also, in its opinion (at 904) in the first section 2255 proceeding, stated that it

* * * expressly rejects the credibility of the statements of Ketchum and Mrs. Stanley concerning promises, inducements and ill-treatment, after listening to their testimony and the testimony of the other witnesses, and after observing Ketchum, Mrs. Stanley, the Oklahoma City policemen, and the F.B.I. agents in court over a period of approximately five days. * * *

This Court (at 903) pointed in some detail to the differences in the testimony of Ketchum and of the Oklahoma policemen at the hearing in the first section 2255 case, concerning the policemen’s first viewing of the tools in the trunk of Ketchum’s car, and concerning the entry into the motel room. This Court, however, made no finding in the first section 2255 case as to which version of those two events this Court accepted, in view of the lack of causal connection, and also the time gap, between any alleged Fourth Amendment violation and Ketchum’s voluntary confession and guilty pleas. However, after reviewing the record of the hearing in this Court in the first section 2255 case, and with a full present recollection thereof, this Court has no hesitancy in stating that it then believed and at this time believes and accepts the testimony of the Oklahoma City policemen concerning those events, disbelieves the contrary testimony of Ketchum, and finds that those events occurred as the policemen testified they took place. Accordingly, neither the viewing of the tools in the auto trunk, nor the entry into the motel room and the subsequent viewing and seizure of the weapon, were illegal. Ketchum’s pistol was lying openly and visibly in the room at the time of such entry. Thus, its seizure was permitted whether under pre- or post-Chimel v. California Standards, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). See Porter v. Ashmore, 421 F.2d 1186, 1188-1189 (4th Cir. 1970), appeal pending, No. 110 (October Term, 1970), holding prospective only the standards established by Chimel.2

The warrantless search of Ketchum’s automobile after his jailing does raise a serious problem in and of itself, but since that search only provided substantially the same information already obtained by the viewing of the contents of the trunk at the time of Ketchum’s arrest, it is not of material or relevant import herein. Accordingly, this Court concludes that the Goverment legally obtained all of the information stated by the prosecutor to Judge Winter with regard to the tools and the weapon.

Additionally, even if Judge Winter was given, at the time Ketchum pled guilty and was sentenced, information derived from illegal searches and seizures of Ketchum’s automobile and/or motel room, Ketchum cannot successfully collaterally attack in a section 2255 complaint the acceptance of his guilty plea and the sentences imposed in a proceeding in which neither the sentencing judge nor, as far as the record shows, [772]

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Bluebook (online)
327 F. Supp. 768, 1970 U.S. Dist. LEXIS 9070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ketchum-v-united-states-mdd-1970.