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McCleary v. Hudspeth

December 24, 1941

MCCLEARY
v.
HUDSPETH, WARDEN.



Appeal from the District court of the United States for the District of Kansas; Richard J. Hopkins, Judge.

Phillips

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from a judgment denying a petition for a writ of habeas corpus.

McCleary*fn1 was charged by two indictments returned in the District Court of the United States for the Western District of Pennsylvania*fn2 with violations of the postal laws. He entered pleas of guilty to the several counts thereof and was sentenced to a term of imprisnment of 25 years.

After serving part of the sentences imposed, petitioner filed an application for a writ of habeas corpus in the District Court of the United States for the District of Kansas alleging that he was denied the assistance of counsel for his defense in the criminal proceedings and that the sentences imposed w ere void. The court found that petitioner was denied assistance of counsel for his defense in the criminal proceedings, ordered him discharged from the custody of the warden of the penitentiary in which he was confined, and delivered to the united States Marshal for the Western District of Pennsylvania.

A bench warrant was issued on the indictments and petitioner was taken into custody thereon and confined in the Erie and Allegheny County, Pennsylvania jails. On January 12, 1940, the judge of the Pennsylvania federal Court appointed Lloyd W. Kennedy to act as counsel for petitioner on the trial of such indictments. The court later appointed A. M. Tua as additional counsel for petitioner.

On February 21, 1940, the acting United States Attorney for the Western District of Pennsylvania filed a motion to vacate the pleas of guilty theretofore entered by the petitioner to the indictments. A rule was entered upon petitioner and his counsel to show cause why the pleas of guilty should not be declared void and vacated. On February 29, 1940, Kennedy and Tua, after a full hearing on the motion, agreed that such pleas should be vacated and an order was entered vacating the pleas and the judgments ments entered thereon. Petitioner did not agree to but objected to the order.

On March 18, 1940, petitioner was arraigned a second time on the indictments and entered his plea of not guilty to each of the several counts thereof. On the same day, he was tried on the indictments, being represented at the trial by Kennedy. The jury returned verdicts of guilty. He was sentenced to a term of imprisonment of 25 uears and was delivered into the custody of Hudsopeth, warden, on March 27, 1940.

Petitioner, in his application for the writ herein, set up the foregoing facts and further alleged that he was being subjected "to double punishment for one ofense"; that he was being subjected to cruel and unusual punishment; that he was tried, convicted, and sentenced without due process of law; that he was tried on two indictmnets at one time before one jury; that a part of the record of the Pennsylvania Federal Court was changed or altered to secure his conviction; that he was denied compulsory process to procure witnesses for his defense; that he was compelled to be a witness against himself; and that he was not permitted to consult with counsel at every stage of the prceedings. The warden filed an answer to the application in which he set up the facts above stated and denied the foregoing allegations of the application.

A writ of habeas corpus ad testificandum was issued and petitioner was brought before the court and testified at the hearing. He was represented by C. D. Holman, an attorney of Leavenworth, Kansas.

After a full hearing, the court fund the facts hererinbefore recited; specifically found that petitioner was competently and capably represented by counsel appointed by the Pennsylvania Federal Court; that petitioner was afforded full opportunity to consult with such counsel; that he was not denied the assistance of counsel for his defense; that he was not denied the right to have witnesses subpoenaed in his begalf; that he did not request the court to subpowna any witness in his behalf at the expense of the government; that he was sane and rational at the time of the trial; and found the issues generally against petitioner.

The findings of the trial court are fully supported by the evidence.

Petitioner urges that by subjecting him to trial on the indictments, he was twice put in jeopardy for each of the offenses charged in the indictments. contrary to the provisions of the Fifth ...


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