J. Paul Shelton v. United States

"Your Honor wouldn't recall personally at this late date all that happened but in as much as part of my motion here is based on the fact I really am innocent of the charge, I would like to state this on the question of my guilt or innocence. The Government's charge was —

"Mr. Read: Your Honor, I would like to object to, and do object to any testimony along that line of his guilt or innocence. I believe from the law that is not an issue that can be brought in on the motion under 2255.

"The Court: No, Mr. Shelton, we can't retry the case, you appealed this case, did you not, to the Fifth Circuit Court? A. No, sir.

"The Court: You didn't? A. I will content myself with just saying that I wasn't guilty then.

"I believe Mr. Breland was present part of the time, and Mr. Carter was present part of the time, the officials of the Penitentiary, and the conversation went something like this: `Now, hell, Shelton, you know we have got you on this, the first jury was going to convict you if we had not had a mistrial, so why don't you plead guilty and get this thing over,' and I reaffirmed my innocence of the charge, and I expressed a firm belief I would be acquitted, either by Your Honor without a jury, or with a jury. I believe I somewhat taunted him for having refused to go to trial before Your Honor without a jury. I asked him what he was afraid of, did he think he could flimflam a jury better than he could Your Honor. That was said in a jocular vein, of course and he said, `Well, a jury will convict you, and if they don't convict you, you still will have to go down to Florida and be tried down there.' Well, the thought that went through my head then, I had a terrible vision of spending months down in the Miami jail, and I had gotten fed up with these county jails, and the Penitentiary, relatively speaking, is a paradise compared to the county jail. Well, I could not recall every word that was spoken, but the substance of the conversation between Mr. Tysinger and myself was this: Mr. Tysinger stated if I could, would, come down here and plead guilty, he would guarantee a sentence of one year — he said not a year and a day, a year. And he further stated that he would get the Miami indictment disposed of, and it would not be necessary for me to go to Miami, and he pointed out to me, even though I would be acquitted here, and even though I would be acquitted in Miami, I still would have to spend several months in jail awaitingPage 104trial, fighting the case. So I asked, well I deliberated on his proposition, and eventually I told him after we discussed the matter there for perhaps half an hour or so, I told him, I said, very well, if you can guarantee a sentence of one year, and if you will guarantee the dismissal of the Miami charge, I will plead guilty. And he said he would come back down here, and he would get in touch with the various persons necessary, and if he was able to do what he thought he could do, he would have me brought down as soon as possible and I could enter a plea of guilty. And I told him, very well, but I at no time admitted to him I was guilty, but on the contrary, I at all times stated I was innocent of this charge, and if I went to trial I expected to be acquitted of this charge, but as a matter of expediency I would take him up on the proposition, to avoid going down to Miami, spending many, many months."

"* * * he stated he wanted to get all settled up, all straightened up with his law cases, and he wanted to dispose of them by withdrawing his petition for certiorari in the Supreme Court of the United States, one of them, and by dismissing the indictment, nol prossing the indictment, lifting the detainer in Miami, Southern District of Florida, I asked him what he proposed to do, and he said he would take, he would like to get a sentence of five years, including the four year sentence in New Orleans, or a year and a day in addition to it, and the main part of the conversation was about withdrawing his petition for certiorari to the Supreme Court of the United States, and the nol prossing of the Miami indictment, and lifting that detainer. Now, I told him I couldn't do anything but recommend to the court about these, but if he, this is after he had the mistrial here in this court, and the — we had spent thousands of dollars of United States money, and I was trying to prosecute on that mistrial. In order to expedite justice and save the Government money, I told him I would recommend a year and a day, or five years, to end forever the litigating action on the part of the petitioner, and that was understood, and I come back and I did recommend to His Honor, whereupon I proceeded immediately to call the Attorney General of the United States, criminal division, called Mr. Gilmartin, U.S. Attorney in Miami, and I talked to the Assistant U.S. Attorney on several occasions, each one of them, and there wasn't nothing intended to be promised him, just recommendations, but everybody agreed, and he was brought in here, and entered a plea of guilty, and His Honor sentenced him to a year and a day to follow the four year sentence in New Orleans."

"Q. All right, sir. Now, in that interview, Mr. Carter, will you tell us as briefly as possible, what the substance of the conversation was between Mr. Tysinger, and the movant,Page 106with relation to the disposition of this case on the matters that were brought up? A. Yes, sir. As well as I can, I will. Mr. Shelton had a sentence at that time of four years. He had been committed to Atlanta. He had a pending case in this court, and he had a pending case in the Southern District of Florida. And there were possibly cases at St. Louis, and I believe El Paso, Texas. And he stated that he was a little worried about the case in Florida. He didn't seem to be worried too much about the other cases, and that he wanted to dispose of it. And of course the case here in Georgia was a (sic) in the Northern District of Georgia was the first case to be disposed of. And I don't know how the agreement was arrived at, it seemed to me like it was mutually acceptable. Judge Tysinger, rather Mr. Tysinger, said he would use his good offices and recommendations that the Court give him one year, if he would plead guilty to this case on the Northern District of Georgia, that he would endeavor to get all the pending indictments, and the pending cases disposed of. And that in return Shelton would plead guilty up here in the, in this court, to the offense, and he would drop all his litigation. He had an appeal pending at that time, among other things, and he was going to drop all his pending litigation, and he would go ahead and serve the five years which would be the then total, and that would be all there was to it.

"Q. Five years, one to — A. With the one year he was expecting to get up here."

"Q. Mr. Carter, did you hear me make an admission that I was actually guilty of transporting a 1948 Lincoln automobile from Washington, D.C. to Atlanta, Georgia? Have you ever heard me admit such a thing? A. No.

"Q. And this deal which Mr. Tysinger and I worked out, you say seemed to be mutually acceptable to each of us? A. It appeared to me that it was.

"Q. And did it appear to you that without those promises by Mr. Tysinger that I would have agreed to plead guilty? Did it appear to you that my plea was induced by promises to do these various things? A. I couldn't express any opinion on that. I don't know what induced you to plead guilty.

"Q. You do recall, I believe you did state, on direct examination you stated that I stated I would plead guilty if he did thus and so? A. That was my understanding.

"Q. If he did thus and so, I would plead guilty. A. Yes."

"A. Now, with respect to my guilt or innocence on this charge, I want to once more make an offer of proof of innocence. I know Your Honor previously ruled the fact that it was not relevant, but I do want to make the offer of proof, and that for the record as to my innocence, and in connection with that there are cases which I have written down here, where the question of innocence or guilt was considered by the Court.

"Q. Well, the higher courts differ on that, some say that a man, if he is entitled to have it set aside, should allege he is innocent, and some say to the contrary. But I am taking your statement that you are innocent, and considering that. But I am not going back and re-try the case, because my opinion is it is premature, if a man enters a plea of guilty and it was obtained, the plea was obtained unlawfully, I think itPage 107should be set aside, whether he is guilty or whether he is innocent, and start over again. So I am giving you the benefit of that. A. Very well, Your Honor.

"Q. Do you have counsel, Mr. Shelton? Do you have a lawyer? A. No, I waive counsel.

"Q. You wish to expressly waive counsel? A. Yes, I do."

"Q. Well, you understand you are pleading guilty to transporting a Lincoln Automobile from Washington, D.C. to Atlanta, Georgia, contrary to Section 2312, Title 18, of the United States Code? A. Yes, sir.

"Q. Now, with that part of the record, we ask the defendant to sign the plea of guilty to count 1."

"I, Jay Paul Shelton defendant, having received copy of the within Indictment, and having been arraigned and having been advised of my constitutional right to the assistance of counsel, and having been offered counsel by the Court, waive the right to the assistance of counsel and now plead guilty to offense as charged in the 1st Count of the Indictment.

"Jay Paul Shelton "Defendant."

"Mr. Tysinger: The plea of guilty has been entered, may it please the Court, and for the record, I wish to state that this District has been authorized to take this plea of guilty as to Mr. Shelton by the Attorney General of the United States, received today, and Mr. Gill Martin (sic) being present, I wish to state he can confirm it, that we are going to dismiss the criminal charges in the Southern District of Florida at Miami.

"Mr. Tysinger: Mr. Gill Martin (sic) can confirm that with the Attorney General. That is the information this morning * * * Now, that being completed, I move, if Your Honor sees fit in his discretion to impose sentence on Mr. Shelton at this time, this case having been tried here, a mistrial having been made, I think the Court is amply furnished with sufficient information to understand the matter and can complete the record with justice that meets the situation.

"Q. Let me ask Mr. Shelton if he wishes to say anything before I impose sentence? A. No, Your Honor, I have nothing particularly to say except, the mercy of the court, any mercy the court sees fit to give me, I would appreciate.

"Mr. Tysinger: May it please the Court, I forgot one thing for the record. Mr. Shelton has filed a series of motions in preparation for trial in the case, and I think Mr. Shelton has something to say about the withdrawal of those motions.Page 108A. Yes, I presume you will take for granted they won't be necessary now.

"The Court: No, this will supersede all that, but let the record show they are withdrawn.

"The Court: I am imposing sentence of one year in this case to follow your present sentence, Mr. Shelton. I think you are only serving one sentence at this time, is that right? A. Yes, sir, that's right.

"The Court: The sentence will be one year to follow your present sentence which you are now serving. A. Thank you, Your Honor. Might I ask if I could have permission to call some of my relatives to make one call to advise them as to the outcome — not to come for trial, they were coming a long distance from Kentucky.

"The Court: Yes. I see no objection to that. A. I will call them collect.

"Mr. Tysinger: That will be all right. A. Thank you, very much.

"Mr. Shelton: Thank you very much, Your Honor. (Whereupon the hearing was concluded.)"

"The Court: * * * I am going to have to decline your motion because I do not feel that under the facts you have shown any imposition of any duress or anything of that kind in connection with your sentence. And I think the record will show, of course a Judge can't testify to himself in a case like this, but I think the record does show there is some testimony that the sentence of a year was cleared by Mr. Tysinger with the Court, and the Court agreed on Mr. Tysinger's recommendation that if you would enter a plea of guilty, or did enter a plea of guilty, that the Court would impose one year. What amount would have been imposed without that recommendation by Mr. Tysinger I do not say. I wouldn't attempt to say. And as to the other objections made there by you, the most Mr. Tysinger perhaps could have said was that he would do the best he could. It seems that he did pretty well, because everything that was mentioned in there was accomplished, and with your experience and your more than average intellect, I would think that when you were talking with Mr. Tysinger that you would realize that he couldn't tell all the judges over the country, and the parole boards what to do. That when he said he would make an effort to get these things, that he would, and apparently he did. He said that he tried to do it. The evidence shows that it was accomplished, and I can't help but think that it was done at least with his cooperation. Court will recess until further order."

"Although the one-year sentence in question was imposed more than three years ago, it will not expire until April 1958, due to the fact that it runs consecutively to a four-year sentence imposed by the U.S. District Court in New Orleans July 31, 1952, and due to the additional fact that the four-year sentence was inoperative approximately ninePage 109months pending appeal. The prison officials aggregated the two sentences for purposes of computing `good time' and conditional release date, and appellant wasconditionallyreleased on the aggregated sentence October 17, 1956; however, as stated above, the maximum expiration date on the aggregated sentence will not be reached until April 1958. Appellant is emphasizing this fact because Judge Hooper, in denying the motion to vacate sentence and application to appeal in forma pauperis, seemed to rely heavily on the erroneous assumption that appellant had only a short time left to serve, and that the case would soon become moot. (R. 117) The fact is, however, as shown above, that the case will not become moot before April 1958, as appellant will be in a form of constructive custody until that time, unless he is successful on this appeal."

"The parole authorized by the statute does not suspend service or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term, less allowance, if any, for good conduct. While this is an amelioration of punishment, it is in legal effect imprisonment. The sentence and service are subject to the provision * * * that if the parole be terminated the prisoner shall serve the remainder of the sentence originally imposed without deduction for the time he was out on parole." Anderson v. Corall,263 U.S. 193,196,44 S.Ct. 43,44,68 L.Ed. 247.

"An actual restraint is necessary to warrant interference by habeas corpus; but any restraint which precludes freedom of action is sufficient, and actual confinement in jail is unnecessary."

"Something more than moral restraint is necessary to make a case forhabeas corpus. There must bePage 110actual confinement or the present means of enforcing it. The class of cases in which a sheriff or other officer, with a writ in his hands for the arrest of a person whom he is required to take into custody, to whom the person to be arrested submits without force being applied, comes under this definition. The officer has the authority to arrest and the power to enforce it. If the party named in the writ resists or attempts to resist, the officer can summon by-standers to his assistance, and may himself use personal violence. Here the force is imminent and the party is in presence of it. It is physical power which controls him, though not called into demonstrative action. It is said in argument that such is the power exercised over the appellant under the order of the secretary of the navy. But this is, we think, a mistake. If Dr. Wales had chosen to disobey this order, he had nothing to do but take the next or any subsequent train from the city and leave it. There was no one at hand to hinder him. And though it is said that a file of marines or some proper officer could have been sent to arrest and bring him back, this could only be done by another order of the secretary, and would be another arrest, and a real imprisonment under another and distinct order. Here would be a real restraint of liberty, quite different from the first. The fear of this latter proceeding, which may or may not keep Dr. Wales within the limits of the city, is a moral restraint which concerns his own convenience, and in regard to which he exercises his own will." Wales v. Whitney, supra, 114 U.S. at pages 571-572, 5 S.Ct. at page 1053.

"The papers are labeled as though they sought a common law writ of errorcoram nobisbut the notice ofPage 111the motion indicates that an order voiding the judgment is sought. In behalf of the unfortunates, federal courts should act in doing justice if the record makes plain a right to relief.³ We think a belated effort to set aside the conviction and sentence in the federal criminal case is shown. We therefore treat the record as adequately presenting a motion in the nature of a writ of errorcoram nobisenabling the trial court to properly exercise its jurisdiction. Adams v. U.S. ex rel. McCann,317 U.S. 269,272,63 S.Ct. 236,87 L.Ed. 268.

"3. Darr v. Burford,339 U.S. 200,203-204,70 S.Ct. 587,589,590,94 L.Ed. 761:

"`The writ of habeas corpus commands general recognition as the essential remedy to safeguard a citizen against imprisonment by State or Nation in violation of his constitutional rights. To make this protection effective for unlettered prisoners without friends or funds, federal courts have long disregarded legalistic requirements in examining applications for the writ and judged the papers by the simple statutory test of whether facts are alleged that entitle the applicant to relief.'"

"The dilemma with which the relator is faced is thus apparent. He must establish the invalidity of his federal conviction before he can ask the Pennsylvania Board of Parole to revoke its action in recommitting him because of that conviction. And he cannot establish the invalidity of that conviction in a habeas corpus suit directed against his state custodian. Nor can he do so in a statutory proceeding under section 2255 of title 28, United States Code. For the remedy given by that section is available only to a prisoner who is actually in custody under the sentence which he seeks to set aside. Here the relator has served in full the sentence imposed by the district court and is now, as we have seen, a prisoner in the custody of a state penitentiary warden under the sentence of a state court.

"There is, however, a procedure by which one in the position of the relator can obtain a determination of the constitutional validity of a criminal judgment against him which has been fully executed but the effects of which persist to his detriment. This may be accomplished by a motion in the nature of a writ of error coram nobis. United States v. Morgan, 1954,346 U.S. 502,74 S.Ct. 247[98 L.Ed. 248]. In the Morgan case the Supreme Court suggested that in behalf of unfortunate prisoners without friends or funds a court should act in doing justice, if the record makes plain a right to relief, without regard to legalistic requirements of pleading, citing Darr v. Burford, 1950,339 U.S. 200,203-204,70 S.Ct. 587,94 L.Ed. 761.

"We conclude that the interests of justice require us to approach the present case in this way. While it is true that the United States is not technically the respondent in this case as it should be on a motion in the nature of a writ of coram nobis it has nonetheless appeared in the person of the United States Attorney who has filed a brief in support of the validity of the judgment of the district court which is under attack by the relator. We therefore, think it proper to consider the relator's petition, which as we have seen is not sufficient for the issuance of a writ of habeas corpus, as though it were a motion in the nature of a writ of error coram nobis seeking to set aside the relator's conviction in the district court." United States v. Tees, supra, 211 F.2d at pages 71-72.

"In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made."