*1 Jr., Guy HOLLOWAY, Wellman Appellant, America, UNITED STATES Appellee. Guy Holloway, Jr., per. pro. W. Davis, Atty., Edward Lawience U. S.
United States Court of Turoff, Phoenix, Ariz., Atty., Asst. U. S. Ninth Circuit appellee. April 12, 1968. HAMLIN, Before KOELSCH
BROWNING, Judges. Circuit HAMLIN, Circuit Guy Holloway, Jr., herein- Wellman appellant, timely appeal after in this court from an ordеr of the United District Court the District denying of Arizona without pellant’s petition to convic- vacate two Arizona, tions already tences on which have been served. pauperis in forma and in pro per. From the documents filed court the fol- lowing appear. facts Dеcember, 1961, appellant, repre- guil- by appointed counsel, pleaded sented ty (18 U.S.C. § 2313) in of Arizona. Before the District apparently sentence on that escaped recaptured. He charged escape (18 U.S.C. § It time of pellant’s arraignment the District thеre was some conversation between counsel concerning United States charge pend- possible another ing against aрpellant in the state of Tex- as, possibility and of the of that disposed heard and Arizona District under Rule Court Federal Rules of Criminal Procedure.1 There was a ar- continuance of the short raignment permit appellant’s counsel to consult with ney, attor- which, appellant contends, after * * * writing 1. Rule 20. him state in * * * plead guilty held A defendant arrested or that he contendere, nolo wishes to other than that in a distriсt to waive trial in the dis- pend- or information is the indictment trict which the indictment or in- *2 732 petition in
counsel advised him that
the
his
to
he
show that
contended
bargаin
attorney
concur-
States
would recommend
that a
had
in refer-
been made
appellant
in
if
rent sentences
agreed
all matters
ence
sentence recommendations and
bargain
might
kept.
be
that
that
the Texas case
had not been
Arizona.
transferrеd to
the
petition
by appellant
agreed
Appellant
by
supplied
contends that he so
district
on
court was
a form
upon
plea
and
of
that basis entered a
the clerk of the district
court
guilty
charge.
“Motion,
After this
to Section
Pursuant
**
guilty appellant’s attorney
of
re- 2255
in a later
quested
sentencing
on
in
that
be
document filed
court
deferred
charge
appellant requested
the
the court
charge until
Texas
the time when the
treat his motion “in the nature
a writ
charge
Rule 20
could
before the
that
also be
of error coram
and he cited in
nobis”
Accordingly,
court.
tencing
the date for sen-
v.
document the case of United States
502,
Morgan,
was set for March
On
98
346
74 S.Ct.
U.S.
day appellant’s
(1954),
this
pear
counsel did not
L.Ed. 248
case authorized
which
colloquy
filing
petition
and a
ensued
between
a writ
of a
court, aрpellant and the United States
coram nobis after sentences have been
attorney concerning
pendency
complеted.
charge
Rule 20
at
was
which
that time
The district
denied
Appellant
not before
stated
the court.
indicating
petition
hearing
that
without a
straightened
get
he
that wanted “to
all
it
jurisdiction by
it had no
reason of the
up at
the same time.” In answer
a
fact that
the sentences in thе District
question by
the court as to the Rule
completed.
Court of Arizona had been
attorney stated
the United States
investigation,
“I know therе
an
but
was
disagree.
pur
We
One of the
as far
I
as
know there is no other
poses of coram nobis is to allow a de
charge.”
stated,
Appellant
“No
fendant to attack a conviction notwith
standing
charges? Okay,
just
other
I
don’t want
completed
the fact that he has
coming
have to
and
if
be
back
forth
Morgan, su
sentence. United
get
could
it taken care of at one time.”
pra
A defendant
earlier release. remanded to the district The case is during proceedings, for permitted should be amplify contentions. amend or Wayne PATTERSON, Warden, Colo K.
CONCURRING OPINION Penitentiary, Appellant, rado State KOELSCH, Circuit BROWN, #34946, Oswald Homer successfully can estab- Unless Aрpellees. Glymph, #34945, lish a vital flaw Dyer escape on the Act he is not entitled to a writ United States Court nobis, coram for the sentencеs Tenth Circuit. current, each causes the harm which April predicate issuance necessary the writ. Holloway’s opinion indicates directed
attack escape his conviction
charge (which rested he asserted involuntary plea); until the not proceeding court on reached this Dyer question Act
did he seek to suggests conviction; and that he now court,
in his brief that the district
arraignment Charge (and likewise comply re-
charge), with failed quirements Rule Fed.R.Crim.P. judgments Thus, on both his first attack
is made in this court. suggest ordinary cirсumstances, procedure to sim- would be
the orthodox judgment. it is ply affirm the confine perhaps in this instance better package and, without matter to one seeming judge, re- the trial to fault below, heard on this issue. raised not taking consider court should also now plea guilty рlea court did tention that his requirements comply taken contra- of Rule not though appellant Procedure. Rules of Criminal vention of Rule Federal States, time on F.2d for the first raised this issue Heiden v. United peal. allow The court should