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LOWREY v. HIATT

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF PENNSYLVANIA


September 9, 1947

LOWREY
v.
HIATT, Warden

The opinion of the court was delivered by: FOLLMER

The petitioner, James Edgar Lowrey, together with his brother, Thomas, was originally arraigned on October 15, 1946, at Wheeling, West Virginia. One counsel was appointed for both. Indictment was waived. The record shows that such waiver was intelligently made. *fn1" Petitioner entered a plea of 'guilty' and Thomas a plea of 'not guilty.' In view of Thomas' plea of 'not guilty,' the case was continued. Further proceedings at Wheeling were then had on November 15, 1946, as to the petitioner; the proceedings as to Thomas having in the meantime been dismissed since petitioner had assumed the entire blame. He, at this hearing, waived counsel and requested leave to withdraw his plea of 'guilty' and plead 'not guilty.' *fn2"

The case was then called at Elkins, West Virginia, on November 19, 1946, at which time counsel was appointed for him, *fn3" who requested a psychiatric examination. The Court thereupon carefully and somewhat at length interrogated the petitioner, *fn4" was fully satisfied and found as a fact that petitioner was sane. The Court accordingly refused to direct the psychiatric examination.

 A careful consideration of this question both from an examination of the record and observation of the petitioner on the witness stand satisfies this Court that petitioner would not have avoided trial by such examination. Nor is this question properly before this Court. This is a factual issue which has been determined against petitioner by the Court having jurisdiction of the offense. *fn5"

 While he voluntarily admitted his guilt and a trial would not have been more than a gamble at great odds, nevertheless the question in habeas corpus is not the guilt or innocence of a defendant, *fn6" but whether he was in fact coerced into the plea of 'guilty' by statements which were made by court officials. *fn7" The fact that he was represented by counsel is not a bar to a consideration of this question in habeas corpus. *fn8"

 The petitioner throughout the proceedings in the trial court voluntarily admitted his guilt. *fn9" His first change of plea from 'guilty' to 'not guilty' occurred after he had taken the full blame and after the proceedings against his brother Thomas had been nol prossed. There is no doubt that his background is bad and that by his actions he played fast and loose with the court, justifying some irritation on the part of both prosecuting officials and the court. This unfortunately occasioned certain remarks *fn10" which I am forced to conclude had a direct bearing on his final plea. *fn11"

 In view of this decision the proceedings against this petitioner are still pending in the Northern District of West Virginia and it appears that a trial may still be had. In the light of the circumstances as heretofore pointed out, is is not the intention of this Court that he should escape any just conviction and punishment. Therefore, in disposing of this cause 'as law and justice require,' *fn12" the trial district will be given an opportunity to assume jurisdiction for trial, the order entered herein to be without prejudice to such further proceedings. *fn13"

 It is therefore ordered and decreed that James Edgar Lowrey be discharged from his present imprisonment in the United States Penitentiary, Lewisburg, Pennsylvania, provided, however, that William H. Hiatt, Warden of the United States Penitentiary, Lewisburg, Pennsylvania, shall notify the United States Attorney for the Northern District of West Virginia of the day and hour when he will discharge the said James Edgar Lowrey from imprisonment and that such notice be given at least twelve days before the release of the prisoner.

 The Clerk of this Court is directed to mail certified copies of this order to the United States District Judge and the United States Attorney for the Northern District of West Virginia.


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