MEMORANDUM OPINION
BREWSTER, District Judge.
The petitioner’s motion under 28 U.S. C. § 2255 seeks to vacate his conviction and sentence in this Court in CR. No. 1-98, United States of America vs. Marvin McKinley Morrison, et al. for aiding and abetting Joe Fredrick McDonald in robbing the President of the federally insured State National Bank of Big Spring, Texas, of $12,000.00 belonging to such bank by assaulting him and putting his life in jeopardy.
Prior to the beginning of the hearing, the petitioner filed a motion to disqualify the undersigned Judge on the ground of bias and prejudice. His counsel refused to join in the motion.1
The Judge against whom an affidavit of bias and préjudice is filed must pass upon the sufficiency of the affidavit, but not upon the truth or falsity of the facts alleged. He must ac[288]*288cept as true every allegation of fact made as a predicate for affiant’s belief. Willenbring v. United States, 9 Cir., 306 F.2d 944 (1962); Albert v. United States District Court for Western District of Michigan, Northern Division, 6 Cir., 283 F.2d 61 (1960), cert. den. 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 706; Green v. Murphy, 3 Cir., 259 F.2d 591 (1958); Scott v. Beams, 10 Cir., 122 F. 2d 777 (1941), cert. den. 315 U.S. 809, 62 S.Ct. 795, 86 L.Ed. 1209. When the affidavit of the petitioner is so tested, it is insufficient for each of the following reasons:
1. The allegations are conclusory in nature rather than factual. There are no allegations of adequate facts to support such conclusions. 28 U.S.C.A. Sec. 144, the statute under which affidavits of this kind are brought, says: “The affidavit shall state the facts and the reasons for the belief that bias or prejudice .exists. * * * ” In pursuance of this provision of the statute, it has been held that the reasons and facts for the belief of prejudice a litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede partiality of judgment, Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L. Ed. 481 (1921); Foster v. Medina, 2 Cir., 170 F.2d 632 (1948); Tucker v. Kerger, 7 Cir., 186 F.2d 79 (1950), and that statements in an affidavit of bias or prejudice against a trial judge which were couched in generalities and failed to recite the specific facts were insufficient. Simmons v. U. S., 3 Cir., 302 F. 2d 71 (1962).
2. The Judge’s bent of mind complained of in the affidavit is not shown to be a personal bias, extrajudicial in origin. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761 (1967), cert. den. 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111; Hodgdon v. United States, 8 Cir., 365 F.2d 679 (1966), cert. den. 385 U.S. 1029, 87 S.Ct. 759, 17 L.Ed.2d 676; Barkan v. United States, 7 Cir., 362 F.2d 158 (1966), cert. den. 385 U.S. 882, 87 S.Ct. 170, 17 L.Ed.2d 109; Wolfson v. Palmieri, 2 Cir., 396 F.2d 121
(1968); In re Union Leader Corp., 1 Cir., 292 F.2d 381 (1961), cert. den. 368, U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190. It was admitted at the outset of the hearing that whatever feeling the petitioner charged the judge had arose only from proceedings in the courtroom in connection with this case.
3. While the first and natural reaction of a judge to a motion questioning his ability to give a litigant a fair trial would ordinarily be to recuse himself, the rule is well established that it is a judge’s duty to sit when no valid reason is given for his disqualification. Edwards v. United States, 5 Cir., 334 F.2d 360 (1964); cert. den. 379 U.S. 1000, 85 S.Ct. 721, 13 L.Ed.2d 702; Tynan v. [289]*289United States, supra; Rosen v. Sugarman, 2 Cir., 357 F.2d 794 (1966). Any other rule would result in a vicious cycle of judge shopping in criminal cases.
28 U.S.C.A. Section 2255, shows that it is the established public policy of the federal government that collateral attacks on convictions should be heard, if possible, by the judge who imposed the sentence. He is in the best position to evaluate an attack from the legality and fairness of the trial. It stands to reason that in most cases a petitioner seeking to vacate his conviction would rather have some judge other than the one who presided at the trial of his case on the merits. If judges should readily recuse themselves without adequate justification, it would be an incentive to petitioners under Section 2255 to file affidavits of bias and prejudice.
Aside from all of the above, if there were the least question in my mind about my ability to give both sides in this case a fair trial, I would recuse myself without any motion. Such condition of mind does not exist.
The only ground set out in the motion is that the government used perjured testimony of Morrison’s co-defendant, McDonald. A fúll evidentiary hearing that consumed most of three days has been held, with Morrison present. McDonald was also brought back from the penitentiary and testified at length. Able counsel was appointed for Morrison, but he dismissed them 2 in the middle of the trial for no reason at all and proceeded pro se with the help of the thirty pounds of “legal papers” he had brought with him from the penitentiary.
“ * * * The essential elements of an action to set aside a conviction on this theory are, first, that material perjured testimony was actually given, and, second, that the prosecution knowingly used it or allowed it to go uneorrected. * * * The burden is on the movant to prove the essential elements of his action. * * * ” Estes v. United States, D.C.W.D.Tex., 254 F.Supp. 314, 318 (1966), citing Napue v. Illinois, 360 U. S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Enzor v. United States, 5 Cir., 296 F.2d 62 (1961), cert. den. 369 U.S. 854, 82 S.Ct. 940, 8 L.Ed.2d 12, and numerous other eases. The Court is of the opinion that neither of such elements was established in the case sub judice. The government officials believed in good faith that the testimony given by McDonald on the criminal trial of Morrison was true, and it was in fact true.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM OPINION
BREWSTER, District Judge.
The petitioner’s motion under 28 U.S. C. § 2255 seeks to vacate his conviction and sentence in this Court in CR. No. 1-98, United States of America vs. Marvin McKinley Morrison, et al. for aiding and abetting Joe Fredrick McDonald in robbing the President of the federally insured State National Bank of Big Spring, Texas, of $12,000.00 belonging to such bank by assaulting him and putting his life in jeopardy.
Prior to the beginning of the hearing, the petitioner filed a motion to disqualify the undersigned Judge on the ground of bias and prejudice. His counsel refused to join in the motion.1
The Judge against whom an affidavit of bias and préjudice is filed must pass upon the sufficiency of the affidavit, but not upon the truth or falsity of the facts alleged. He must ac[288]*288cept as true every allegation of fact made as a predicate for affiant’s belief. Willenbring v. United States, 9 Cir., 306 F.2d 944 (1962); Albert v. United States District Court for Western District of Michigan, Northern Division, 6 Cir., 283 F.2d 61 (1960), cert. den. 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 706; Green v. Murphy, 3 Cir., 259 F.2d 591 (1958); Scott v. Beams, 10 Cir., 122 F. 2d 777 (1941), cert. den. 315 U.S. 809, 62 S.Ct. 795, 86 L.Ed. 1209. When the affidavit of the petitioner is so tested, it is insufficient for each of the following reasons:
1. The allegations are conclusory in nature rather than factual. There are no allegations of adequate facts to support such conclusions. 28 U.S.C.A. Sec. 144, the statute under which affidavits of this kind are brought, says: “The affidavit shall state the facts and the reasons for the belief that bias or prejudice .exists. * * * ” In pursuance of this provision of the statute, it has been held that the reasons and facts for the belief of prejudice a litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede partiality of judgment, Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L. Ed. 481 (1921); Foster v. Medina, 2 Cir., 170 F.2d 632 (1948); Tucker v. Kerger, 7 Cir., 186 F.2d 79 (1950), and that statements in an affidavit of bias or prejudice against a trial judge which were couched in generalities and failed to recite the specific facts were insufficient. Simmons v. U. S., 3 Cir., 302 F. 2d 71 (1962).
2. The Judge’s bent of mind complained of in the affidavit is not shown to be a personal bias, extrajudicial in origin. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761 (1967), cert. den. 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111; Hodgdon v. United States, 8 Cir., 365 F.2d 679 (1966), cert. den. 385 U.S. 1029, 87 S.Ct. 759, 17 L.Ed.2d 676; Barkan v. United States, 7 Cir., 362 F.2d 158 (1966), cert. den. 385 U.S. 882, 87 S.Ct. 170, 17 L.Ed.2d 109; Wolfson v. Palmieri, 2 Cir., 396 F.2d 121
(1968); In re Union Leader Corp., 1 Cir., 292 F.2d 381 (1961), cert. den. 368, U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190. It was admitted at the outset of the hearing that whatever feeling the petitioner charged the judge had arose only from proceedings in the courtroom in connection with this case.
3. While the first and natural reaction of a judge to a motion questioning his ability to give a litigant a fair trial would ordinarily be to recuse himself, the rule is well established that it is a judge’s duty to sit when no valid reason is given for his disqualification. Edwards v. United States, 5 Cir., 334 F.2d 360 (1964); cert. den. 379 U.S. 1000, 85 S.Ct. 721, 13 L.Ed.2d 702; Tynan v. [289]*289United States, supra; Rosen v. Sugarman, 2 Cir., 357 F.2d 794 (1966). Any other rule would result in a vicious cycle of judge shopping in criminal cases.
28 U.S.C.A. Section 2255, shows that it is the established public policy of the federal government that collateral attacks on convictions should be heard, if possible, by the judge who imposed the sentence. He is in the best position to evaluate an attack from the legality and fairness of the trial. It stands to reason that in most cases a petitioner seeking to vacate his conviction would rather have some judge other than the one who presided at the trial of his case on the merits. If judges should readily recuse themselves without adequate justification, it would be an incentive to petitioners under Section 2255 to file affidavits of bias and prejudice.
Aside from all of the above, if there were the least question in my mind about my ability to give both sides in this case a fair trial, I would recuse myself without any motion. Such condition of mind does not exist.
The only ground set out in the motion is that the government used perjured testimony of Morrison’s co-defendant, McDonald. A fúll evidentiary hearing that consumed most of three days has been held, with Morrison present. McDonald was also brought back from the penitentiary and testified at length. Able counsel was appointed for Morrison, but he dismissed them 2 in the middle of the trial for no reason at all and proceeded pro se with the help of the thirty pounds of “legal papers” he had brought with him from the penitentiary.
“ * * * The essential elements of an action to set aside a conviction on this theory are, first, that material perjured testimony was actually given, and, second, that the prosecution knowingly used it or allowed it to go uneorrected. * * * The burden is on the movant to prove the essential elements of his action. * * * ” Estes v. United States, D.C.W.D.Tex., 254 F.Supp. 314, 318 (1966), citing Napue v. Illinois, 360 U. S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Enzor v. United States, 5 Cir., 296 F.2d 62 (1961), cert. den. 369 U.S. 854, 82 S.Ct. 940, 8 L.Ed.2d 12, and numerous other eases. The Court is of the opinion that neither of such elements was established in the case sub judice. The government officials believed in good faith that the testimony given by McDonald on the criminal trial of Morrison was true, and it was in fact true. However, if the Court had anything like a reasonable doubt about whether McDonald’s testimony on Morrison’s trial was perjured, the petition would be treated as a motion for new trial based [290]*290on newly discovered evidence, and the conviction would be set aside under Rule 33, F.R.Crim.P., in spite of the good faith of the government officials.
McDonald and Morrison were co-defendants in the same indictment. McDonald was charged with robbing the bank, and Morrison, with aiding and abetting him. McDonald was effectively disguised when he pulled the robbery, and Morrison masterminded it from the background; so law enforcement officers had no idea for some time as to the identity of the participants in the crime. McDonald went back to his home in West Virginia shortly after the bank job, and hijacked a supermarket there. He was apprehended, convicted and sentenced to 15 years. Probation in a prior conviction for burglary was revoked, and the sentence was made to run consecutively to the one for hijacking. McDonald decided to clean his slate. He sent for the F.B.I. and gave them the details on the bank robbery in Big Spring. That was the first information they had as to the identity of the persons involved.
McDonald pleaded guilty and was offered by the government as a witness in Morrison’s trial. The effect of his testimony was that he committed the actual robbery, that Morrison masterminded it, and that they split the proceeds. There was strong corroboration of Morrison’s involvement in the offense.
McDonald was a resident of West Virginia. After receiving his probated sentence in that State for burglary, he and a young girl friend went on a hitchhiking tour of the West in the latter part of 1967. Morrison gave them a ride on the road from Big Spring to San Angelo, Texas in November of that year, and invited them to move into his home with him in San Angelo. Morrison was going under the name of T. L. Raymond there. McDonald accepted the invitation, but the girl went back to Baltimore. Soon thereafter, Morrison moved to Midland, Texas, and rented a house; and McDonald moved with him. McDonald and Morrison spent most of their time travelling constantly over a wide area of Southwest Texas and the Mexican border during that period. There is no indication, even in the pre-sentence reports, as to where they were getting money to live on during that time. There has never been any claim that either one of them earned a dollar honestly 3 during the time they were together.
The bank was robbed on December 12, 1967. The robbery was planned by Morrison. He had lived in Big Spring, and knew the setup and layout of the bank from once having had a small account there. McDonald did not know the bank existed. He was never in it except the time when he pulled the robbery. Morrison had a 1960 Chrysler New Yorker; but when they reached a decision to do the job, they went to a car lot in Midland and bought an old 1957 Chevrolet Station Wagon for $250.00 for the sole purpose of using it for transportation in connection with the robbery.
When Morrison and McDonald left Morrison’s house in Midland for Big Spring, 40 miles away, on the day of the robbery, McDonald was wearing a business suit which belonged to Morrison. The brief case and the pistol McDonald was to use in the robbery were also furnished by Morrison. McDonald’s normally light brown hair was dyed black. Morrison drove him to a point less than a block from the bank. He had told McDonald that the President of the bank was a Mr. Currie who had a private office where they would not be observed. McDonald walked into the bank shortly before closing time carrying the brief case with the pistol in it, and asked for Mr. Currie. He told Currie that he was representing an oil company and would like to have the door closed [291]*291while he discussed some business with him. When the door was closed, McDonald pulled the pistol out of the brief case and demanded $60,000.00. Currie, with the pistol pointed at him all the time, dickered over the amount, and finally got McDonald down to $12,000.00 on the basis that the bank was small and the employees would become suspicious if they were asked to bring more than $12,000.00 cash into the office. He got $12,000.00 in $20.00 bills and surrendered it to McDonald. McDonald then told Currie to walk out of the bank in front of him to Currie’s car.4 McDonald, with the pistol in his belt and the money in the brief case, followed directly behind Currie as they went from the office to the car. Currie was instructed to drive to the Gibson parking area and did as he was told. McDonald had never been there before and had no idea where it was located. When they stopped at a place designated by McDonald after they reached the parking lot, Currie, under McDonald’s instructions, got in the back and lay on the seat with his head facing the rear of the car. When the elderly gentleman got in position, McDonald beat him over the head with Morrison’s pistol until he was in no condition to know what became of McDonald. Currie lay in the car stunned and bleeding when McDonald left. Morrison was waiting on the side of Gibson’s store opposite from the place where Currie’s car was parked. As McDonald approached, Morrison told him to get into the car and drive it across the street to the parking lot of the Veterans’ Hospital. McDonald did, and Morrison followed on foot about 10 minutes later. Morrison walked by the car without stopping and told McDonald to change clothes. McDonald took off Morrison’s suit and put on some Levis and an old shirt. He then drove to the other end of the parking lot and Morrison got into the car under the wheel. McDonald still had to wash the black dye out of his hair to make his entire appearance completely different from what it was during the robbery. Morrison called a cocktail waitress friend, and got her to leave her job to go let him and McDonald in her house. When she left to go back to work, McDonald washed his hair. At Morrison’s direction, McDonald then got the suit out of the car and hung it up in a closet in the house. They left it there when they went back to Midland.
Morrison and McDonald gave Morrison’s common-law wife 5 $1,000.00 of the loot for household expenses, and split the remaining $11,000.00 equally. They proceeded to get rid of the 1957 Chevrolet Station Wagon promptly by trading it in on a later model Pontiac and paying the difference in cash.
A few days before the robbery, Morrison had looked at a 1964 Ford Convertible in San Angelo, but did not have the money to buy it. On December 19, 1967, he had the necessary cash and closed the deal.
On Morrison’s criminal trial, McDonald testified to most of the facts above set out. The only material change made in his recantation on the present hearing is that Morrison knew nothing about the bank robbery and had no connection with it. He now says that [292]*292Morrison thought they were going to Big Spring on the occasion in question only for the purpose of taking some pills6 to McDonald’s prostitute girl friend who lived near the bank. That explanation just does not jibe with the admitted facts. It presents several questions for which there is no reasonable answer. Why would Morrison and McDonald buy the Chevrolet Station Wagon to make the trip to Big Spring just to take some pills to McDonald’s girl friend? Why didn’t they use the Chrysler Morrison already owned? Why would McDonald need to disguise himself to take pills to a girl who knew him well? How was McDonald to get to Gibson’s parking area without Currie’s car? Why was the meeting at Gibson's necessary? Why didn’t Morrison give McDonald a few minutes to deliver the pills and pick him up near the girl friend’s house? Why did they have to arrange for washing the dye out of McDonald’s hair and to leave Morrison’s business suit at the cocktail waitress’ house rather than risk having it in the Chevrolet with them on the way back to Midland?
To look at the recantation from a slightly different angle, it does not retract or change the following circumstances which tie Morrison into the robbery beyond question:
1. Morrison and McDonald jointly purchased the Chevrolet Station Wagon to use solely for the trip from Midland to Big Spring and return on the occasion when the bank was robbed. They got rid of it promptly upon their return to Midland after the robbery. Morrison owned a Chrysler which could have been used for the trip except that it did not fit into their robbery plan.
2. Morrison furnished the business suit for McDonald to wear during the robbery and the brief case and the gun to be used.
3. Morrison drove McDonald from Midland to Big Spring and let him out within about a block of the bank. Morrison knew McDonald had his hair dyed and had on a suit that could not easily be traced to him.
4. McDonald could not have pulled the job as smoothly as he did without some knowledge of the setup at the bank. He had never “cased” the bank or even been in it before the robbery. Under the plan, he had to know that the President had a private office, even though the bank was a small one, and that the President kept his car at the bank.
5. Morrison would not have acted as he did in the clandestine rendezvous with McDonald at the Gibson parking area if he had not been implicated.
6. Morrison knew McDonald made the change in the car from the business suit to Levis and an old shirt after Morrison had seen McDonald at Gibson’s.
7. Morrison made arrangements for a place where McDonald could wash the dye out of his hair before they drove back to Midland.
8. Morrison had McDonald leave Morrison’s business suit at his friend’s house rather than risk taking it back to Midland in the car with them.
9. Before the robbery, Morrison was short of cash. Just after it, he was “plush” for a man of his standing.
McDonald was a West Virginia state prisoner at the time he and Morrison were sentenced in May, 1968. After Morrison’s trial, he was returned to the state penitentiary in West Virginia. Nothing was heard from him in regard to his testimony while he was there. In August or September, 1968, he was taken to Del Rio, Texas, where he and Morrison were facing a joint federal court charge of smuggling marihuana. He and Morrison were in the same portion of the Del Rio jail where they could talk [293]*293to each other for several weeks. While they were so situated, McDonald made a one page written statement saying in effect that his testimony implicating Morrison was false and that he committed the robbery without Morrison’s knowledge or assistance. Morrison’s case was on appeal, but he filed a motion for new trial alleging newly discovered evidence on the basis of McDonald’s written statement. Both Morrison and McDonald were brought from Del Rio to Abilene for a hearing on the motion for new trial.
Before the hearing on October 3, 1968, Mr. Mack, Morrison’s court appointed attorney, requested an interview with McDonald with his lawyer and counsel for the government present. Such an interview was held, and McDonald told Mr. Mack and the others present that his testimony on Morrison’s trial was true and that his written statement of recantation was false. He said that the statement was involuntarily made. He thereupon wrote upon the statement which was then attached as an exhibit to Morrison’s motion for new trial the following in his own words:
“I would like to withdrawl (sic) this statement, it is not the truth, what I said before on the witness stand was the truth as I know it. I was promised a lawyer for West Virginia charges and was under duress, at the time I wrote this statement above.”
When McDonald was later called by Morrison as a witness on the hearing of the motion for new trial, Mr. Thomas, McDonald’s court appointed attorney, said that he had had a conference with McDonald in jail shortly after McDonald arrived in Abilene for the hearing on the motion, and that McDonald had informed him the written statement “was made under duress and that it was wholly untrue; that the testimony he made under oath in this court back on the 20th of May in the trial of this case was the truth.” After referring to the subsequent conference with McDonald and Mack present, the following occurred:
“MR. THOMAS: And comparing his conversation with the conversation I had with him and the conversation had with the government’s attorney, I think he told approximately the same story, that this statement was made under some form of duress, and that it wasn’t true and isn’t true; and that his testimony, of course, as originally given, was not perjured testimony, but that it was the whole truth, and that this statement is false.
“THE COURT: Mr. McDonald, do you agree with your lawyer’s statement? I do not want to invade your privilege. Do you object to his answering that question ?
“MR. THOMAS: No, sir.
“THE COURT: Do you agree with the statement Mr. Thomas just made?
“DEFENDANT McDONALD: Yes, sir.”
McDonald claimed his privilege against testifying. Counsel for Morrison stated that he did not see how the Court could force McDonald to testify, and the witness was excused. After other evidence was heard, the motion for new trial was overruled. Counsel for Morrison had the record of the proceedings prepared and forwarded to the Court of Appeals for consideration in connection with Morrison’s appeal from his conviction. The appeal was dismissed at Morrison’s insistence on February 5, 1969. (No. 26235, Morrison v. United States).
Morrison and McDonald continued to be together in custodial institutions for a long period following the hearing on the Morrison’s motion for new trial. They were returned to the jail at Del Rio immediately after the hearing. They then filed motions for psychiatric examination, and were sent to the federal institution at Springfield, Mo. for such examinations. They were together all the time there, and during that period McDonald filed two typewritten in[294]*294struments in the federal court at Abilene. One was a motion to vacate his conviction on the ground that his plea of guilty was involuntary. The other was a civil action petition suing his court appointed attorney, Mr. Thomas, and the Assistant United States Attorney, Mr. Florence, for $250,000.00 each on the ground that they had wrongfully induced him to swear falsely on Morrison’s trial to facts implicating Morrison in the robbery. The psychiatric staff at Springfield found both Morrison and McDonald mentally competent, and they were returned to the Marshal of the Western District of Texas to be held for trial on the marihuana case in Del Rio. They were together for weeks in federal custody in the jails at San Antonio and Del Rio. McDonald took the fall on the marihuana case and Morrison got out of it. McDonald was then brought to Abilene on his way back to the penitentiary for a hearing on his post-conviction motion.
When McDonald reached Abilene, new counsel was appointed for him. At the time the matter was called for hearing, he appeared with his counsel and said that he wanted to dismiss that action and his civil suit against Mr. Thomas and Mr. Florence. He said, however, that he wanted to make a statement to become a part of the court record. He thereupon said that he had falsely sworn that Morrison was implicated in the bank robbery. His two cases were dismissed as he requested, and he was returned to the state penitentiary in West Virginia. He remained there until he was brought back to Abilene on a writ for this hearing on Morrison’s Sec. 2255 petition.
In Newman v. United States, 5 Cir. 238 F.2d 861, 862 (1956), our present Chief Judge Brown recognized that, “ * * * persons who, as participants co-conspirators, or actors in the criminal activity initially charged, might from a variety of base motives, or importunities, be impelled, by recantation, to come to the aid of a person whose conviction has been brought about by their testimony, confident, as experienced criminal litigants, that the unusual difficulties in successful prosecution for perjury would expose them to no real peril.” (Emphasis added). He went on to say in footnote 1 of the opinion that: “Recantation is ‘looked upon with the utmost suspicion,’ Harrison v. United States, 2 Cir., 7 F.2d 259, 262. * * * ”
It is not necessary to resort to inference to determine whether there were base motives or importunities here. They were proved by statements McDonald made to several people, by the notation he put on the bottom of his written recantation,7 and by his admissions in open court.8 He told Deputy Marshal Black that the reason he recanted was because he had to be able to say when he got back to the West Virginia penitentiary that he had gone on record in a court retracting his testimony incriminating Morrison. He said that “squealers” were in danger at that penitentiary; and that in the few months he had been there since Morrison’s trial, two men who had testified as witnesses for the prosecution had been murdered and another one had been stabbed in the back.9 He [295]*295also told Mr. Black that an additional reason for his recantation was that Morrison had promised that if he could get out, he would employ a lawyer to get McDonald’s convictions set aside.10 He made the same statements as to his reasons to his [296]*296lawyer, Mr. Thomas.11 McDonald admitted in his testimony on this hearing that he had made such statements to Black and Thomas, but insisted that he was not afraid of anybody. Some of his testimony on this hearing casts doubt on his lack of fear.12 He further testified that harm' could come to a “squealer” [297]*297serving a term in the penitentiary, even though the man he testified against was not there. He said the man injured by the testimony seldom had a hand in the murder of a “squealer”.13 It is just the code that “squealers” are taken care of.
Another persuasive factor in believing that McDonald’s testimony on Morrison’s criminal trial was true is that it was the same story he told the F.B.I. Agent who answered his call at the West Virginia penitentiary and Mr. Thomas, his court appointed attorney. McDonaid admits this. The Agent knew nothing about the case. McDonald had no reason to talk to him unless he was going to tell the truth. Mr. Thomas had never seen McDonald before their first interview in the jail. That interview was a lengthy one and Thomas made copious notes. He still had the notes when he testified on this hearing. He said that McDonald’s story to him in that first interview was the same that he told during his testimony, and that the notes so showed.
[298]*298McDonald never could get settled on his motive for giving perjured testimony against Morrison. On this trial, he said it was because he disliked Morrison and wanted to put him out of the way. Morrison tried to intimate in his questions to McDonald that it was because McDonald wanted his “wife”, Dollie.14 In McDonald’s civil suit against Thomas and the Assistant United States Attorney, he said they knowingly induced him to give the perjured testimony. On this hearing, he said they never asked for anything but the truth.
It is obvious that Morrison high-pressured McDonald to recant. The jail in Del Rio was a perfect setting for Morrison to begin on McDonald. On this hearing, McDonald testified that the fellow prisoners in their section of that jail were facing smuggling and narcotics charges.15 McDonald was only about 20 years old. He was of just average intelligence and was immature for his age. Morrison was in his later 30’s and his long experience in crime had matured him. He dominated McDonald. He was cunning and conniving. He never let up on anything until he got what he wanted. He was a constant source of harassment while he was in the jail at Abilene. Immediately following the arraignment in the robbery case, McDonald asked to be taken back to the San Angelo jail instead of being kept in the Abilene jail with Morrison. He wanted to get away from Morrison’s harassment. McDonald told the F.B.I. Agent in the first interview in the West Virginia penitentiary that Morrison was sadistic. On the present hearing, he admitted making that statement, but he said it was incorrect. He did testify, however, “ * * * he [Morrison] could be extremely dangerous if he had a good reason.” McDonald never wrote a letter or a pleading. His near illiteracy shown in his notation on the bottom of the written statement of recantation makes it appear that it is highly unlikely that he could write anything much. Morrison, on the other hand, is a prolific writer. Many of the instruments signed by McDonald appear to be in Morrison’s handwriting. Morrison did have an exact copy of everything McDonald signed in connection with all these proceedings. It is obvious that this recantation is a pure frame-up by Morrison and that McDonald is going along with him on it.
There is not enough merit in the issue presented by this record to justify this detailed discussion. The question presented is only one of fact for the trial court. Newman v. United States, supra, 238 F.2d at page 863, where the following is quoted with approval from Gordon v. United States, 6 Cir., 178 F.2d 896, 900 (1949), cert. den. 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353:
“ * * * If the District Judge, on the basis of the whole record of the original trial and the matters presented on the hearing of the motion, believes the statements in the affidavit of recantation to be false and is not reasonably well satisfied that the testimony given by the witness on the trial [299]*299was false, the decision is for him to reach for he is ‘not at liberty to shift upon the shoulders of another party his own responsibility, but [is] charged with the responsibility to seek the truth himself * *
This Court, from observing McDonald during his testimony on Morrison’s trial and on this hearing, and taking into consideration the credibility factors usually relied upon by the trier of facts, believes that McDonald’s recantation is false and that his testimony on the original trial was true. That alone would be sufficient ground for denying the motion to vacate. Other grounds appearing herein which have been held to be a sufficient basis in themselves for refusing to set aside a conviction on the ground of recantation by a witness for the prosecution are that the witness at some time repudiated his recantation, Maldonado v. United States, 9 Cir., 325 F.2d 295, and that the recantation was conceived under suspicious circumstances, Martin v. United States, 5 Cir., 17 F.2d 973, 976, cert. den. 275 U.S. 527, 48 S.Ct. 20, 72 L.Ed. 408, cited with approval in Newman v. United States, supra. Morrison will be filing motions to vacate as long as he is in the penitentiary. The threat in his letter of January 20, 1969 heretofore mentioned about “bombarding” the courts was not just idle talk. All of the transcripts of all prior proceedings relating to the connection of Morrison and McDonald with this bank robbery were offered in evidence in this case. They are in a number of separate documents and at least one of them is lengthy. All together, they are voluminous. The author of this opinion presided at all those hearings, and deems it advisable to summarize those proceedings while they are fresh on his mind for whatever value they may have in future post-conviction proceedings involving this petitioner.
While it is not a proper issue in a proceeding of this kind, the Court, for the purpose of making the picture complete, will comment briefly on Morrison’s complaint about the fact that he received a sentence of 25 years while McDonald got only 15.
Morrison masterminded the robbery. In pursuance of his instructions the victim, an elderly man, was cruelly beaten over the head with a pistol. He is a recidivist with a rap sheet five pages long showing that he has been to the penitentiary three separate times. His prior convictions include two for robbery. He will be a menace to society as long as he lives.
McDonald, the co-defendant, pleaded guilty and testified as a witness for the government. He was young and acted under the domination of Morrison. He would not have committed the offense except for Morrison. He appeared truly repentant at the trial. He had voluntarily sent for the F.B.I. and given them the information necessary to clear up the case when they had no idea who was involved in the robbery. While he strayed far from right after he came under Morrison’s influence, the Court had the impression at the time that he might have some good in him, if it could be reached.16
The Court is of the opinion that the petitioner’s motion to vacate should be denied. Judgment will be entered accordingly.
This opinion will serve as the findings of fact and conclusions of law.
a. “THE COURT: (Addressing Counsel
for Petitioner) Is there any possibility • — have you found from him [petitioner] or any other source any possible basis for feeling that the Judge has any feeling about the case from any source outside the trial itself?
“MR. CHARLES SCARBOROUGH:
No, Your Honor, I know of no extraneous, extrajudicial influence that could have or was asserted upon Your Honor, and from the defendant I learned of none.
“THE COURT: Did you go into that very thoroughly with him this morning?
“MR. CHARLES SCARBOROUGH: Yes, sir.
“THE COURT: Mr. Morrison, do you have in mind any source outside of the proceedings here in court where I learned anything about you at all, or have any feelings about you at all? Or were you talking about some opinion formed from what I saw and heard here in the courtroom? Which are you talking about?
“DEPENDANT MORRISON: I was speaking of what went on in the courtroom, Your Honor.
“THE COURT: Well, under the law that is not grounds for disqualification of a judge. If a man is qualified to be a judge, naturally he would form some opinion from the proceedings in court, and could not help it. I overrule the motion.”