Atlee White v. W.H. McHan Warden

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Atlee WHITE, Appellant, v. W. H. McHAN, Warden, Appellee.

No. 24890.

United States Court of Appeals Fifth Circuit.

Nov. 28, 1967.

385 F.2d 817

Division. The judgment and commitment showed the conviction and sentence of appellant for the offense of bank robbery and attempted bank robbery and his sentence to the custody of the Attorney General for imprisonment for a period of twenty years. The Marshal‘s return on the document showed the appellant was transferred to McNeil Island, Washington. By additional evidence the government showed the subsequent transfers which resulted in appellant being confined to Leavenworth, from where he escaped.

Strickland v. United States, supra;

Mullican v. United States, 252 F.2d 398, 70 A.L.R.2d 1217 (5th Cir. 1958).

* * *

Relying upon the facts above stated, appellant contends that the proof of conviction required under the rule above stated was not satisfied because the authenticated copy offered to prove the conviction, sentence and confinement was authenticated by the Deputy Clerk rather than the Clerk of the District Court in whose custody the instruments had been preserved. Fed.R.Civ.P. 44, made applicable in criminal cases by Fed.R.Crim.P. 27, provides that “An official record [judgment, sentence, commitment] * * * when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody.” Fed.R.Crim.P. 55 makes it clear that the Clerk of the District Court shall keep the records in criminal proceedings and it is apparent that the legal custody of the records herein questioned was properly in the office of the Clerk of the District Court. The certificate of the District Judge so certified as is provided in Rule 44. The Deputy Clerk attested this copy as is specifically provided in Rule 44. Therefore, the questioned documents were properly authenticated, accompanied by the appropriate certificate, and admissible in evidence.

Appellant further contends that he was justified in escaping because the judgment, commitment and sentence were invalid and he was unlawfully imprisoned. The trial court denied this doctrine of justification as a defense in appellant‘s trial for escape.

This court has said that a sentence imposed for a violation of 18 U.S.C. § 751 is “not affected by the validity of the sentences being served at the time of the escape.”

Crawford v. Taylor, 290 F.2d 197, 198 (10th Cir. 1961). Appellant recognizes that many other courts have adopted the same view.

Mullican v. United States, supra, 252 F.2d at 403;

Lopez v. Swope, 205 F.2d 8, 10-11 (9th Cir. 1953);

Godwin v. United States, 185 F.2d 411, 413 (8th Cir. 1950);

United States v. Jerome, 130 F.2d 514, 518 (2nd Cir. 1952), rev‘d on other grounds,

318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (1943).

Affirmed.

John H. Ruffin, Jr., Augusta, Ga., for appellant.

Mathew Robins, Asst. Atty. Gen., Atlanta, Ga., for appellee.

Before BROWN, Chief Judge, FAHY,^* and DYER, Circuit Judges.

PER CURIAM:

Appellant, indicted for murder, was tried and convicted by a jury in the state courts of Georgia of voluntary manslaughter. After exhausting state remedies appellant petitioned the District Court for a writ of habeas corpus alleging that Negroes had been systematically excluded from the jury which convicted her and that she was denied benefit of counsel in that her attorney failed to raise the jury discrimination issue at trial. After an evidentiary hearing at which appellant produced three witnesses and some documentary evidence the District Court denied the petition. We affirm.

Appellant had the burden of presenting a prima facie case of deliberate discrimination.

Whitus v. State of Georgia, 1967, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L.Ed.2d 599. Two of the three witnesses testified that neither they nor any member of their families had ever been called for jury duty. The third testified that he had twice served on a jury and that he knew Negroes had served in the county where appellant had been convicted for five or six years which included the year of appellant‘s trial. The only statistical evidence introduced was the population figures of the county in question broken down to show the number of Negroes and of Whites over 21 years of age. Such a paucity of evidence does not establish a prima facie case of discrimination. Cf.

Whitus v. State of Georgia, supra.

It is well settled that habeas corpus relief on grounds of denial of effective counsel “will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.”

Williams v. Beto, 5 Cir., 1965, 354 F.2d 698, 704. The record is barren on this score. Furthermore under the circumstances present here and the evidential showing of this record a challenge of the jury would have been unavailing.

Affirmed.

FAHY, Circuit Judge (specially concurring):

My concurrence in denying relief sought on the basis of alleged ineffective assistance of counsel, is based on the absence of an adequate showing. As to my view of the proper rule, see my dissent in

Mitchell v. United States, 104 U.S.App.D.C. 57, 64, 259 F.2d 787, 794, cert. denied

358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86.

Notes

*

Senior Circuit Judge of the District of Columbia Circuit, sitting by designation.

Case Details

Case Name: Atlee White v. W.H. McHan Warden

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 28, 1967

Citation: 386 F.2d 817

Docket Number: 24890

Court Abbreviation: 5th Cir.