him. Thereupon the Court inquired of the prisoner if he was fully aware of the seriousness of the crime with which he was charged and of the probably consequences in the event of a plea of guilty, and the prisoner answered that he was. Upon the prisoner being advised fully by me of his constitutional rights of the appointment of counsel, and after prisoner stating that he was aware of the charges preferred against him and the consequences of his plea of guilty, and after the Defendant having stated that he did not want the Court to appoint counsel to represent him, the Court thereupon accepted the plea of guilty proferred by the defendant and thereupon pronounced sentence.' On July 1, 1949, the respondent, George W. Humphrey, Warden, filed a motion in which the Respondent offered in evidence a certified copy of this certificate by Honorable Mell G. Underwood above referred to. This motion was granted on July 4, 1949.
From the record in the case and from the evidence, the Court finds the following facts:
1. When Petitioner was arraigned and entered his plea of guilty on June 13, 1940, and was sentenced on June 20, 1940, he was not represented by counsel. At these times Petitioner was offered counsel without cost to him, and was duly informed as to his constitutional rights to counsel, but stated that he did not desire counsel.
2. Petitioner was born March 6, 1921, and was nineteen years old at the time he was arraigned, entered his plea, and was sentenced in June, 1940.
3. Petitioner completed the eighth grade in school.
4. Petitioner had never been in a court room before his arraignment in June, 1940; he had no knowledge of law, and he had no knowledge of Court procedure.
5. Petitioner had no criminal record prior to June, 1940.
6. After Petitioner was arrested in the Panama Canal Zone on December 20, 1939, and while he was being transported to Ohio in the custody of a United States Marshal, the Marshal, on several occasions, advised him to plead guilty, and intimated that he (the Marshal) would 'talk to the Judge for him and get him off with a light sentence.'
7. In advance of the time when Petitioner was 'brought before the Court and entered a plea', Judge Underwood and the Assistant United States Attorney 'discussed the facts of the case', and the Assistant United States Attorney 'saw that the Judge was going to impose the maximum sentence of 25 years.' There is no evidence that this discussion took place in open Court. Petitioner was not present at this discussion, was not advised of the discussion, and had no knowledge of the discussion or what transpired in it at the time he waived counsel and entered his plea.
The Court reaches the following conclusions of law:
1. Even though a defendant in a criminal case in a Federal Court is informed as to his constitutional right to have counsel provided for him without cost to him, and states that he does not desire counsel, the circumstances may be such that he should be provided with counsel, notwithstanding, and such circumstances exist in this case.
2. Petitioner's disadvantage from absence of counsel was aggravated by circumstances showing that it resulted in his being taken advantage of and prejudiced, and, therefore, was a violation of due process of law. Const. Amend. 5. Townsend v. Burke, 1948, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690; and citation thereof in Curtis v. Hiatt, 3 Cir., 1948, 169 F.2d 1019.
3. Petitioner did not competently and intelligently waive his right to have the assistance of counsel for his defense.
4. Petition No. 193 for Writ of Habeas Corpus should be granted, and Petitioner should be released from confinement in the United States Penitentiary, Lewisburg, Pennsylvania.
NOW, July 7, 1949, it is ordered and decreed that William Watto Curtis be discharged from his present imprisonment in the United States Penitentiary, Lewisburg, Pennsylvania; provided, however, that George W. Humphrey, Warden of the United States Penitentiary, Lewisburg, Pennsylvania, shall notify the United States Attorney for the Southern District of Ohio of the day and hour when he will discharge the said William Watto Curtis 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 Southern District of Ohio. This Order is entered without prejudice to further proceedings in the case of United States v. William Watto Curtis, No. 4488, Criminal Docket, United States District Court, for the Southern District of Ohio.