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United States v. Brierley

decided: August 29, 1969.

UNITED STATES OF AMERICA EX REL. FRANK E. DARRAH, APPELLANT,
v.
JOSEPH R. BRIERLEY, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT PHILADELPHIA, PENNSYLVANIA



McLaughlin, Kalodner and Van Dusen, Circuit Judges.

Author: Mclaughlin

Opinion OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

This is an appeal from the order of the District Court denying appellant Darrah's petition for a writ of habeas corpus. The latter was based on Darrah's contention that his pleas of guilty were induced by a coerced confession, that he was deprived of effective assistance of counsel both at trial and at sentencing and, that his sentence constitutes cruel and unusual punishment.

Appellant pleaded guilty on January 22, 1945 in the Court of Quarter Sessions of Philadelphia County to charges stemming from various separate incidents involving burglaries of numerous homes and businesses. Although Darrah pleaded not guilty to one weapons charge he pleaded guilty to all charges upon which sentences were imposed, viz. five (5) separate counts of burglary and receiving stolen goods (Indictment Bills Nos. 391, 393, 394, 395, 397).*fn1 Consecutive 10 to 20 year sentences were imposed on each count.*fn2 No appeal was taken from the judgment of sentence. In August 1966, over 20 years after said sentences, Darrah filed a petition under the Pennsylvania Post Conviction Hearing Act. On February 28, 1967 appellant was afforded a full hearing. He testified at that hearing and was represented by counsel. On April 5, 1967, Darrah was granted the right to appeal nunc pro tunc from the sentence judgment as a result of the state court's finding that he did not have effective assistance of counsel at the time of his sentencing. Darrah appealed to the Superior Court of Pennsylvania which remanded the cause to the post-conviction court for further findings of fact and conclusions of law. On December 7, 1967, by opinion and order, the post-conviction court denied relief. The decision of the post-conviction court was affirmed without opinion by the Superior Court (Commonwealth v. Darrah, 212 Pa.Super.Ct. 712, 240 A.2d 81 (1968)) and allocatur was denied on May 21, 1968. Appellant then brought the petition for writ of habeas corpus in the District Court. The latter, without an evidentiary hearing or argument of counsel, by opinion and order dated October 10, 1968, dismissed all of appellant's contentions except the claim of ineffective assistance of counsel at the time of the imposition of sentence and ordered that appellant be resentenced. United States ex rel. Darrah v. Brierley, 290 F. Supp. 960 (E.D.Pa., 1968).

Appellant alleges that the District Court erred in dismissing the petition without an evidentiary hearing and without argument of counsel. The District Court, holding that a hearing was unnecessary, said:

"The state records, including the trial and post conviction hearing notes of testimony provide an adequate basis for deciding this petition. Considering the completeness of the state record it is unnecessary to conduct a hearing. This conclusion is reinforced by the fact that the relator's counsel during all the state collateral proceedings has also entered appearance on behalf of the relator in this proceeding and has submitted the identical brief for our consideration. See Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963)." 290 F. Supp. at 962.

In Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), the Supreme Court of the United States exhaustively considered the circumstances under which a hearing on a federal petition for habeas corpus is necessary. The Court, in outlining the appropriate standard, said at pp. 312-313, 83 S. Ct. at p. 757:

"* * * Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts. (footnote omitted)."

The District Court, after evaluating the state record which included the trial and post-conviction hearing notes of testimony, concluded that the record was complete and therefore that a plenary evidentiary hearing was not indicated. In effect, the Court below was convinced that appellant had been afforded a full and fair hearing on the issue of the voluntariness of his confession and that the findings of the state court were sound and entirely justified on the record. From our independent review of the record and proceedings below we agree that under the facts in this appeal, the District Court had no duty to conduct an independent evidentiary hearing. Townsend v. Sain, supra; United States ex rel. Rowles v. Myers, 407 F.2d 1332 (3 Cir. 1969); United States ex rel. Butler v. Brierley, 387 F.2d 127 (3 Cir. 1967). Clearly there has been no infringement of appellant's fundamental constitutional rights. Likewise, the District Court's decision not to hear oral argument was within its proper discretion since appellant filed a brief below and makes no claim that his contentions were not fully set forth therein.

Appellant also argues that the District Court "erred in holding that the state post-conviction court was correct in rejecting the unequivocal and unrebutted testimony of appellant that his plea of guilty was induced by a coerced confession." Darrah said that he had been subjected to continuous beatings by police officers which resulted in a coerced confession. He further testified that he pleaded guilty because of the threats of the police officers to continue the beatings if he pleaded not guilty. The state court judge, who heard this evidence and observed appellant's demeanor found it "totally unworthy of belief". On this issue the Court below stated:

"After independently reviewing the testimony of the relator, we agree with the conclusion of the Post Conviction Judge. Other than his own assertion, there is no evidence of any coercion on the part of the Commonwealth. In addition, by his own testimony, the relator decided to raise this issue, only after having unsuccessfully attempted on about 13 occasions to have his sentence commuted. We cannot perceive that a defendant would consider such a basic irregularity as a coerced confession as a mere secondary approach to obtaining freedom, to be pursued only if commutation attempts are not successful.

"Accordingly, we conclude that the relator has failed to establish that his confession was not voluntary, or that it presented the principal inducement for pleading guilty."

We agree that appellant failed to present a believable factual showing that his guilty plea had been involuntary. We note that the record does not say whether or not the state trial judge made inquiry as to whether the plea had been knowingly and voluntarily entered.*fn3 Failure of a state court to inquire into the voluntariness of a guilty plea does not, standing alone, entitle appellant to federal habeas corpus relief. United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3 Cir. 1968). We believe this record constitutes "an affirmative showing that the plea was intelligent and voluntary." See Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). He was represented by counsel*fn4 at his arraignment and entry of his guilty pleas. His testimony that he was beaten by police officers is uncorroborated. His own assertions are the only evidence of alleged misconduct by the police. Appellant, on the day of his arraignment and sentencing, testified for the state in the trial of a co-defendant wherein he admitted his implication in various burglaries and attempted burglaries. The long, strange delay in claiming fundamental constitutional rights ...


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