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UNITED STATES EX REL. GORDON v. MYERS

July 7, 1966

UNITED STATES of America ex rel. Oscar McIntyre GORDON
v.
David N. MYERS, Superintendent State Correctional Institution at Graterford, Pennsylvania



The opinion of the court was delivered by: KRAFT

 The real question here is not whether the relator intelligently waived counsel and pleaded guilty, but, whether he was, in fact, represented by counsel. On this objective factual issue the relator has the burden of establishing the validity of his claim. United States ex rel. Smith v. Myers, 250 F. Supp. 460, 462 (E.D.Pa.1966). We conclude, after affording the relator an evidentiary hearing, that he has failed to carry his burden.

 In support of his contention, the relator offered his own assertion that he was without counsel and a letter dated November 21, 1963, from an attorney (Rel.Ex. 2) Nicholas R. Degillio, who disclaimed any representation of Mr. Gordon. *fn1" Mr. Degillio, relying therein on his memory some five years after the trial, recalled that he only represented Henry Sincavage, a co-defendant, who was tried jointly with the relator.

 The state court denied the relator's petition for habeas corpus without hearing, relying exclusively on the Court record of the relator's criminal trial for its finding that relator was represented by Mr. Degillio at his trial.

 As is our duty under Townsend v. Sain, 372 U.S. 293, 312-322, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), we have carefully scrutinized the state court trial record, which unmistakably discloses that the relator was, in fact, represented by counsel when he pleaded guilty and was sentenced.

 Such a state court record is competent evidence, which may be relied upon by either party. Dawson v. City of Los Angeles, State of California, 342 F.2d 986, 988 (9 Cir. 1965); 28 U.S.C.A. §§ 2245, 2247.

 While it cannot be disputed that a state prisoner in a federal habeas corpus proceeding is entitled to impeach flat recitals of record, *fn2" Near v. Cunningham, 313 F.2d 929, 931 (4 Cir. 1963), he cannot, under the guise of impeachment, rewrite the record. Particularly is this true where a state enacts legislation to preserve "* * * the sanctity of the official stenographer's transcript of testimony * * *." Com. v. Kulik, 420 Pa. 111, 112, 113, 216 A.2d 73, 74 (1966) 12 P.S. § 1199.

 It became readily apparent to this Court that the relator during the hearing before us, was obviously fencing with the truth when he impugned the accuracy of the transcript wherever it reflected unfavorably on his claim. *fn3" (See pp. 35-43 of Habeas Corpus hearing transcript). We find the pertinent testimony of the relator and his former co-defendant, Sincavage, motivated by relator's self-interest and unworthy of belief.

 Mr. Degillio's testimony can best be described as a product of vague and faulty recollection. "And questions of credibility, of course, are basic to resolution of conflicts in testimony." Townsend v. Sain, supra, 372 Pa. p. 322, 83 S. Ct. p. 762.

 The Court expresses its gratitude to Joseph Hakun, Esq. for his excellent and unselfish advocacy on behalf of the relator undertaken at our request.

 ORDER

 Now, this 7th day of July, 1966, it is ordered that the petition of Oscar McIntyre Gordon for a writ of habeas ...


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