that nevertheless petitioner was able to understand the questions posed to him and to communicate coherently. (N.T., March, 1969, pp. 10, 24). As to petitioner's allegation that he was mentally incapable at the time of his arrest or unable to understand the nature of the proceedings against him (N.T., September, 1968, p. 35), I find that testimony of Detective Roe was credible and that the testimony of the petitioner was not credible.
The federal officer who first interviewed the petitioner in Boston, F.B.I. Agent William T. Boland, Jr., likewise testified that the petitioner was coherent, understood questions posed, and was fully advised of his constitutional rights during the initial interview which lasted less than an hour. (N.T., March 1969, pp. 27-31). Special Agent Orlin Lucksted, who was present during the interrogation of the petitioner and assisted Agent Boland, corroborated his testimony. (N.T., March, 1969, pp. 55-56). At the time of his interrogation, petitioner testified that he was "sick" because of the lack of narcotics and unable to remember the whole of these interviews. (N.T., September, 1968, p. 10). I have considered the conflicting testimony and resolved the conflict adversely to petitioner's contentions. I find the testimony of both of the federal agents that the petitioner was coherent and fully advised of his constitutional rights at the time of his statements in Boston credible.
Although petitioner had orally admitted commission of the crime to the federal agents in Boston, two weeks later he gave a signed confession to a Philadelphia based Special Agent Donald T. Klinger of the Federal Bureau of Investigation. At the hearing before me, Agent Klinger testified that petitioner was in full possession of all of his mental facilities (N.T., March, 1969, p. 85). I find Klinger's testimony that petitioner was fully capable mentally credible.
In support of his contention that his narcotic addiction made communication with his attorney impossible at the time of his plea, petitioner testified that the court-appointed counsel, a member of the Voluntary Defenders Association, had not discussed the advisibility of pleading guilty or not guilty. (N.T., September, 1968, p. 21). But his counsel testified that he had discussed the various factors involved in the judgment to plead guilty and the circumstances surrounding his confession in Boston. (N.T., March, 1969, pp. 68-72). Petitioner told his attorney that he was experiencing withdrawal symptoms at the time of his statements in Boston, but that he was not under the actual influence of any drug. (N.T., March, 1969, p. 66). All of the evidence given by both attorneys from the Voluntary Defenders Association who had contact with petitioner in connection with the case indicated full participation by petitioner in the decision to plead guilty (N.T., March, 1969, p. 64), including his approval of the withdrawal of certain motions he had filed before counsel had been appointed (N.T., March, 1969, p. 70). Counsel for the petitioner did not testify to any difficulty in communicating with his client regarding the plea. Furthermore, at the time of his plea, by his own statements, petitioner was not addicted to narcotics. (N.T., September, 1968, p. 23). I find that petitioner was able to participate effectively in his defense and to assist counsel in a rational defense.
Petitioner has failed to prove that his condition of being under the influence of narcotics made him either incapable of making a voluntary confession or of entering a voluntary and intelligent plea of guilty; nor does his evidence establish that he was mentally incompetent at the time of the robbery or at the time of his plea. Grennett v. United States, 131 U.S. App. D.C. 202, 403 F.2d 928 (C.A.D.C. 1968).
Petitioner's claim that he should have been allowed to serve his prior state imposed sentence does not justify any relief since a convicted person had no right to a certain priority of punishment as between state and federal jurisdictions. Williams v. Taylor, 327 F.2d 322 (10th Cir., 1964). Petitioner's claims that he was not allowed to confront his "accusers" and to challenge the array of grand jurors, are on equally unsound ground. The government was under no duty to disclose its witnesses before the time of defendant's trial. The array of grand jurors cannot be attacked through habeas corpus proceedings. Redmon v. Squier, 162 F.2d 195 (9th Cir. 1947). The proper way to attack the composition of the grand jury is through a timely motion to quash the indictment.
Petitioner was indicted on counts one and two for violating 18 U.S.C. § 2113(a) of the Bank Robbery Statute, in count three for violating 18 U.S.C. § 2113(b), and in count four for violating 18 U.S.C. § 2113(d). He entered a guilty plea to each of the counts, and on July 20, 1966 he was sentenced to a term of eight years on count one. The sentences on counts two, three, and four were five-year concurrent terms, and that sentence was to run consecutively to the sentence imposed under count one. As noted above, the execution of the latter five-year sentence was suspended and petitioner was placed on probation for a period of five years subsequent to the sentence on count one. Petitioner urges that the sentences on counts two, three, and four must be vacated because of the "pyramiding of sentences of Bill of Indictment 22350 was erroneous." In substance it is his claim that the several provisions of 18 U.S.C. § 2113 here involved,
"merge" upon conviction for purposes of sentencing and are not consecutively punishable where only one bank robbery is involved, even if the total sentence imposed on the several counts is less than the maximum sentence which could have been imposed on any single count. The result sought by the defendant is to have his sentence vacated on three of the four bank robbery counts leaving him with a prison term of eight years without any subsequent probation rather than the eight-year sentence plus the five-year probation imposed.
The petitioner's case is indistinguishable from United States v. Welty, 287 F. Supp. 580 (E.D. Pa. 1968); [Note on May 8, 1970 Welty was reversed, 3 Cir., 426 F.2d 615, No. 17919, No. 17920, No. 17921.] however, Welty, supra is on appeal and the Court of Appeals determination in that case will be fully dispositive of the instant matter. It should be noted that when the Welty matter was decided I did not have the benefit of any decision by the Court of Appeals for the Third Circuit considering the merger issue as it has been raised by Sadler and Welty.
Two panels for the Court of Appeals for the Third Circuit have recently been required to focus on the problem of sentencing under the Bank Robbery Statute. United States v. McKenzie, 414 F.2d 808 (3 Cir., 1969) and United States v. Conway, 415 F.2d 158 (3 Cir., 1969). In these opinions subsequent to Welty, there have been articulated additional doctrines which some might consider as a weakening of the rationale I expressed in Welty.
McKenzie and Conway could be construed to be in conflict with the rationale in Welty. For without any dissent, the Court of Appeals there noted in McKenzie that:
"We reject the Government's contention here because we also find that there is sufficient prejudice here to justify vacating the lesser concurrent sentences if it was error to sentence appellant on counts one and two." 414 F.2d 811 (Emphasis added.)
While there was no problem of consecutive sentences in Conway, supra, the Court of Appeals noted:
"Separate consecutive sentences cannot be given under the subsections of 18 U.S. Code § 2113 since 'there was no indication that Congress intended also to pyramid the penalties' of § 2113."
415 F.2d 160.