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January 26, 1959

UNITED STATES of America, Plaintiff,
Kenneth C. VON DER HEIDE, Defendant

The opinion of the court was delivered by: HOLTZOFF

This is a motion to set aside a judgment of conviction and a sentence imposed by this Court on September 14, 1951, and later reduced on October 24, 1951. The sentence was pronounced on a plea of guilty previously entered at arraignment before Judge Matthews, on charges of housebreaking and grand larceny.

This is one of numerous motions under 28 U.S.C. § 2255 to vacate a sentence, with which this Court has been flooded during the past few years. While the vast majority of these applications are entirely lacking in merit and most of them are frivolous, nevertheless, each requires thorough examination and careful study, thus resulting in a considerable unnecessary burden on a busy Court. The present application differs from the others in one respect. Most of them are filed by prisoners in propria persona. They are generally handwritten and prepared either by the parties themselves or by thier fellow inmates in the enforced leisure of confinement, and are mailed from the penal institutions in which the prisoners are incarcerated. Because of this circumstance, it is necessary to examine each petition of this type ex parte in order to determine whether it sets forth detailed facts that, if true, would constitute a ground for relief. The present application, however, is filed by counsel retained and compensated by the prisoner and, for this reason, the matter was set down for hearing without preliminary scrutiny. It should be noted that counsel who makes this motion is not the same counsel who had previously appeared for the defendant. Originally the defendant, purporting to be impecunious, was represented by counsel appointed by the Court, who acted in his behalf at the entry of the plea, at the imposition of sentence, and in connection with the subsequent application for reduction of the penalty.

 While in form this motion seeks to vacate the sentence and judgment of conviction, it is, in fact, an attack on the arraignment proceeding at which the defendant pleaded guilty, it being the contention of defendant's counsel that in some way which he does not specify his client was deprived of his constitutional rights by the manner in which the plea was accepted. Subsequently to the entry of the plea this case was assigned to me as a matter of routine for the imposition of sentence. Thus, I find myself in the position of being required to determine the validity of proceedings that took place before Judge Matthews. Ordinarily, a judge who has to pass upon the actions of a judge of co-ordinate jurisdiction, especially another member of the same Court, finds himself in a somewhat difficult and delicate position. As will hereafter appear, however, no such problem arises in this instance, since the matter is simple and clear.

 The defendant, Kenneth C. Von der Heide, was arrested by officers of the Metropolitan Police Department of Washington, D.C., on August 4, 1951, on several charges of housebreaking and larceny. On August 20, 1951, four indictments were returned against him, charging housebreaking into four different apartments on four different dates. Three of them also charged grand larceny, one in the sum of $ 938, another in the sum of $ 720, and still another in the sum of $ 1,005. It appears that the defendant was arrested in flagrante delicto while committing the fourth of the housebreakings of which he was accused.

 Later in the day the case was called a second time. The defendant again appeared before the bar, this time with counsel. The latter stated in open court that he had conferred with the defendant in the cell block; that the defendant went over with counsel individually each count of each indictment; and that the defendant admitted his guilt. Counsel's statement also adverted to some other circumstances that are not material at this juncture. The defendant was thereupon formally arraigned and pleaded guilty to each indictment. The Court then requested counsel previously designated to continue to represent him.

 In accordance with the customary procedure, after the entry of the pleas, the Court referred the case to the Probation Office for a presentence investigation. In due course the case came on for sentence before me on September 14, 1951. A detailed presentence investigation report had been previously submitted by the Probation Office.

 The presentence investigation report shows the following facts. The defendant broke into four different apartments in the same apartment house, at 5415 Connecticut Avenue in this city, on July 7, 1951, July 8, 1951, July 26, 1951, and August 4, 1951, respectively. On each of the first three occasions he stole a considerable amount of property consisting of jewelry, silverware, and other small articles, as well as some money. He used the same modus operandi in each instance, namely, by forcing the lock with a piece of celluloid. On the fourth occasion the police laid a trap in an empty apartment which they thought might be invaded by the thief, and the defendant was caught in the apartment after he broke in and entered it. In his interview with the probation officer, he admitted everything frankly, even stating that on other occasions when he was in Washington, he committed other offenses without being caught. He explained that his practice was to go into various apartment buildings, look for an apartment with a newspaper or milk bottles in front, indicating that the tenants were away, and then take a chance on finding no one inside. He told his wife that he was buying and selling antiques and jewelry. The police informed the probation officer that the defendant had been very cooperative, and that through his efforts they were able to recover from $ 10,000 to $ 15,000 worth of stolen property, mostly from an antique dealer in Philadelphia, and were trying to find some more. One hundred and thirty charges of housebreaking, sixty-one charges of grand larceny, and forty-three charges of petit larceny were placed against him, but apparently it was deemed by the United States Attorney sufficient to prosecute him on the four cases here involved. The report further showed that the defendant had been arrested numerous times in other cities and that he had served a term in the Florida State penitentiary for robbery, and was later again convicted in Florida on a charge of breaking and entering.

 The Court will take judicial notice of the records of the Department of Justice. It appears from the files of the Federal Parole Board that the defendant became eligible for parole on September 27, 1957, but that the Board denied his application for this relief on November 20, 1957. His maximum sentence expires on September 13, 1971, but with commutation for good behavior he will be automatically entitled to conditional release on February 16, 1965, unless sooner paroled, since it is always possible to renew the application for parole. In other words, the sentence remains within the control of the Parole Board from the date on which the prisoner became eligible for parole until the expiration of the term.

 Some time subsequently to the denial of his application for parole, the defendant retained his present counsel, who in due course filed the instant motion to set aside the judgment of conviction and sentence under 28 U.S.C. § 2255. Although the basic rules governing such motions are elementary and well known, they, nevertheless, are often ignored by defendants and even at times by members of the bar. For this reason, it seems appropriate at this point to recapitulate these principles briefly.

 Every person accused of a criminal offense is entitled to a day in court. This is a fundamental constitutional right, finding its original source imbedded in the common law. If the defendant pleads guilty, this action on his part constitutes a conviction. In fact, it is a conviction of the highest order. If he does not plead guilty, but stands trial and is convicted, he is entitled to one appeal. This is not a constitutional right, but is accorded to him by statute. Beyond that, there is no further right of review. There must be an end to litigation.

 Writs of habeas corpus and motions under 28 U.S.C. § 2255 are not additional means of routine review. They are reserved for those few exceptional and unusual situations in which it appears that the court lacked or lost jurisdiction, or that the defendant was deprived of fundamental and substantial constitutional rights. *fn1" This is peculiarly true in cases in which the defendant has pleaded guilty. 'Like a verdict of a jury it (the plea) is conclusive', Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed. 1009; United States v. Miller, 2 Cir., 254 F.2d 523. 'Even a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses known and unknown', Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, 709.

 Counsel for the defendant, realizing the force of these principles, argued that the manner in which the plea of guilty was accepted by the presiding judge in this instance deprived the defendant of his constitutional rights. He does not make it clear, however, of what constitutional rights he claims the defendant was shorn, or in what manner this deprivation took place. As a matter of fact, the record affirmatively demonstrates the contrary. At arraignment the defendant indicated that he desired to plead guilty. The Court had the right to accept the plea at that time, for pleas of guilty are frequently entered without the advice of counsel, perhaps more so in some other districts than in this jurisdiction. In this instance, the Court in its commendable zeal to safeguard the interests of the defendant and to make certain that he was not doing anything improvident, declined to accept the plea of guilty at that stage, and designated counsel to confer with him, because he had indicated that he was without funds. It was only after a conference between the defendant and counsel and after an appropriate statement made by counsel in defendant's presence in open court, that the judge accepted the plea. What more could have been done to protect his rights does not ...

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