The opinion of the court was delivered by: KRAFT
The defendant, LeRoy DeGregory, petitioned us, somewhat belatedly, to vacate his sentence, discharge him from probation and remit the fine already paid, or, alternatively, to permit him to withdraw his plea of nolo contendere.
His petition and a responsive answer thereto present for determination the following questions:
1. Is a defendant on probation, following suspension of the execution of a sentence to imprisonment, 'a prisoner in custody' within the meaning of 28 U.S.C. § 2255?
2. Was defendant's application for alternate relief under F.R.Cr.P. 32(d) timely filed?
3. Is either of defendant's applications meritorious?
Meanwhile, the calendar has interposed an additional question:
4. Are the questions raised by the defendant now moot because of the expiration of his period of probation on June 16, 1963?
From the record and the evidence adduced upon hearing we find, as facts, that this defendant was indicted, with others, on April 23, 1958 under 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C. § 1461. At the time of his indictment and arraignment the defendant was a well-read, intelligent, articulate, mature, white male, approximately 47 years of age. He had had 12 years of elementary and high school education, culminating in his graduation from Trenton High School, Trenton, New Jersey.
When indicted, the defendant was employed in a clerical position in New York with earnings of $ 76 weekly. His avocations were music composition and songwriting. He had been married at the age of 21 and was divorced by his wife about 7 years later. Thereafter, he lived in New Jersey with his parents and, following their death, lived alone in Trenton, New Jersey, for four or five more years before his removal to New York, where he resided at the time of his arrest.
Between April 23 and May 19, 1958, the defendant was served with and read a copy of the indictment from which he fully comprehended the nature of the charge against him. When called for arraignment on May 19, 1958, he was quite aware of his right to have counsel and understandingly expressed his wish to plead to the indictment without assistance of counsel. Thereupon, with knowledge and complete understanding of its content and import, the defendant voluntarily executed a written waiver of appointment of counsel, which included the following language:
'The defendant * * *, upon being asked in open court if he is represented by counsel or if he desires the Court to appoint counsel to represent him, states that he does not wish counsel but will act on his own behalf and waives the right to have counsel appointed by the Court.'
Moreover, on the same date, the defendant advised the court that he did 'not wish to make an issue of it', preferred, 'to let myself be at the mercy and compassion of the Court', and wished 'to enter a plea of non-vult' (sic). The court immediately explained, and the defendant fully understood, that the proffered plea of 'non vult', if accepted by the court, was 'in legal effect the same thing as a plea of guilty'; that 'the Court makes no finding' and 'makes no determination of guilt or innocence because the plea in effect admits guilt'; and, that 'the Court has the right to impose sentence'. So understanding, the defendant was arraigned and orally entered a plea of 'non vult' which was accepted by the court and recorded by the Clerk as a plea of 'nolo contendere'.
After pre-sentence investigation, the defendant was sentenced on June 17, 1958 to pay a fine of $ 50 and to undergo imprisonment for one year. Execution of the sentence of imprisonment was suspended and defendant was placed on probation for a five year period. Payment of the fine within ...