371 F.2d 424 | 7th Cir. | 1966
Lead Opinion
On April 7, 1965, this court filed its opinion in a previous appeal by petitioner, reversing the district court’s order “denying [the] motion to reconsider” the court’s dismissal of Baldridge’s habeas corpus petition. 343 F.2d 537 (7th Cir. 1965). This court’s opinion stated the court was “not satisfied” that an adequate determination had been made in the district court that Baldridge was represented by counsel when he was convicted and sentenced to from one year to life imprisonment upon a plea of guilty to burglary and larceny of $26.00 in 1941. We stated that “justice required” the reversal and we remanded “for a hearing at which all relevant evidence be heard, including the testimony of petitioner and such witnesses as he and his counsel may deem necessary.” Id. at 539.
Upon remand Baldridge’s court-appointed attorney — who had also represented Baldridge on the appeal — entered into a stipulation with the State’s Attorney General, without consent of Bald-ridge. Under the stipulation, “oral testimony” was waived as unnecessary and the issues were presented upon a 1954 state post-conviction Report of Proceedings, the affidavit of the 1941 state prosecutor of the Baldridge case, a certified copy of the criminal docket of the 1941 Baldridge trial and the pleadings, briefs and file in the district court together with whatever other evidence the district judge deemed necessary or appropriate for an “adequate hearing.”
The district court thought the “important issue” was not the actual date of plea and sentence but whether Baldridge was represented by counsel when the plea was entered and he was sentenced. The court then credited the affidavit and 1954 post-conviction proceeding testimony of attorney Coppinger and discredited the allegations in Baldridge’s petition because he had been convicted of committing arson in 1958. The habeas corpus petition was denied and Baldridge has appealed pro se.
We are considering here the question of denial of “by far the most pervasive”
We direct a plenary hearing at the earliest possible time upon the “important issue” with respondent ordered to produce any available transcript of the 1941 proceeding at which Baldridge pleaded, was convicted and sentenced, together with mittimus, penitentiary records or any other records which could shed light upon the issue; with respondent ordered to produce as a witness at the hearing the 1941 state prosecutor of the Baldridge case and any other available witness whose testimony could be material on the issue; with a court-appointed attorney representing Baldridge; with a full opportunity to Baldridge to testify and issuance of any necessary order directing that he be produced in court; and with an opportunity to Baldridge to subpoena as a witness Mable Pappas and any other available witness whose testimony is deemed material on the issue. In view of the apparent failure so far of the state court records to determine the issue conclusively, Baldridge shall be absolved of any expense in connection with the hearing.
The district court order appealed from is reversed and the cause is remanded for a plenary hearing as directed.
. Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956), cited in Johnson v. State of New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
Concurrence Opinion
(concurring).
The foregoing opinion by this court constitutes a practical way to belatedly give to Baldridge the benefits of the Gideon decision. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The showing made by the State