Robert D. Perry, Alias "j. George Murray", Plaintiff-appellant, v. United States of America, Defendant-appellee, 292 F.2d 476 (6th Cir. 1961)

Appellant, who was represented at the time by an experienced former Assistant United States Attorney by appointment of the Court, entered a plea of guilty on February 12, 1960, to both counts of an Information charging violations of the Mail Fraud statute, Section 1341, Title 18 U.S.Code. He was sentenced to two years imprisonment on each count, the sentences to run concurrently.

On May 26, 1960, appellant filed a motion under Section 2255, Title 28 U.S. Code, to vacate the sentence, alleging that his court-appointed attorney did not adequately protect his rights, that he was coerced into pleading guilty by the court-appointed attorney in collusion with the Cincinnati Police Department and the State of Ohio Parole authorities, that he was arrested on December 23, 1959, and was not charged with any crime until late in the afternoon of December 27, 1959, that he was held in jail without trial until February 12, 1960, that his original arrest was without warrant or probable cause, and that he was held incommunicado for four and one-half days in the Cincinnati police station and for an additional fourteen days in the Hamilton County (Ohio) jail.

The District Judge appointed an experienced attorney to represent him and held a hearing on July 20, 1960. Appellant was brought from the Federal Penitentiary at Terre Haute, Indiana, to Cincinnati, Ohio, for the hearing. At the outset of the hearing appellant moved the Court to withdraw the motion to vacate, stating to the Court that if he had had all the information which he had after he talked with his attorney, the motion would not have been filed and that he did not want a new trial. However, in view of the serious charges made by the motion against Government officials, attorneys and police officers, the Court declined to permit the motion to be withdrawn and proceeded with the hearing. The appellant did not testify and offered no witness in support of his motion. Six witnesses testified for the Government.

The District Court held that the appellant has failed to sustain the burden of proving the allegations of the motion, and ordered that the motion to vacate be denied.

On the factual issues involved, the ruling is fully supported by the evidence. With respect to the legal issues involved, we concur in the ruling of the District Judge. Whiting v. United States, 6 Cir., 196 F.2d 619; Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729, 730; United States v. Williams, 7 Cir., 212 F.2d 786; O'Malley v. United States, 6 Cir., 285 F.2d 733; Juelich and Larson v. United States, 6 Cir., 257 F.2d 424; United States v. Sawyers, D.C.N.D. Cal., 186 F. Supp. 264, 265; United States v. Research Foundation, D.C.S.D.N.Y., 155 F. Supp. 650; United States v. Lustman, 2 Cir., 258 F.2d 475, certiorari denied 358 U.S. 880, 79 S. Ct. 118; 3 L. Ed. 2d 109.

It is ordered that the judgment be affirmed.