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September 30, 1963

UNITED STATES of America, Plaintiff,
Lloyd L. COOPER, Defendant

The opinion of the court was delivered by: HOLTZOFF

On November 17, 1960, the defendant appeared before another Judge of this Court, with counsel retained by himself, and waived indictment and consented to prosecution by information on two charges of housebreaking. The Court advised him in detail as to his rights to be prosecuted by indictment and to a jury trial if indicted. However, the defendant chose to waive indictment and consent to prosecution by information, and then pleaded guilty.

On January 6, 1961, after a presentence investigation, the defendant came before me for sentence and also was represented by the same counsel whom he had previously retained. The Court called attention to the fact that each of the counts in the information charged a housebreaking, that one of the counts involved a dwelling house into which the defendant broke at night and that this offense constituted common law burglary, which is a very serious offense. The Court went on to state as follows:

 'He admitted to the police that he had broken into more than 100 houses in the northwest, southeast and northeast sections of the city and sold most of the property he had taken. Among the property taken are television sets, cameras, jewelry, records and so forth. The probation report does show also that the police reported, as counsel has stated, that the defendant cooperated in attempting to clear the cases and return the property to the rightful owners, but most of it he had already sold on the streets.

 'Now, the record shows that he has lived pretty much by means of thievery since he was a boy. That is what the probation report states and that seems to be borne out by the details of the report. Consequently, a substantial sentence must be imposed, but the Court will impose much less than the possible maximum because the defendant cooperated with the police and waived indictment and consented to be prosecuted by information.'

 Accordingly, the Court imposed a sentence of 3 to 10 years on each count, the sentences to run concurrently.

 Subsequently, the defendant filed a motion in propria persona seeking to set aside the sentence. Apparently he had hoped for still greater leniency and was not satisfied with the sentence that was imposed on him. His rather lengthy motion seemed, on analysis, to involve or raise three issues. One was ineffective assistance of counsel, even though counsel had been retained by him, without, however, specifying of what the ineffectiveness consisted. Second, he raised the question of mental competency. Third, he claimed that he was induced to cooperate with the police and plead guilty by a promise on the part of the police that they would see to it that he would get a light sentence of not more than two or three years.

 Mr. William H. Dempsey, Jr., was appointed by the Court as counsel to represent the defendant in connection with this petition. He has devoted a great deal of time to the matter, quite obviously, by studying the file and conferring with the defendant, as well as making several appearances in court, including a final hearing that consumed an entire afternoon plus part of the morning of the following court day. He has represented the client to whom he was assigned very ably and in the best traditions of the bar. The Court wishes to acknowledge Mr. Dempsey's services and extend its gratitude to him for performing a public duty gratuitously at the request of the Court.

 When the matter first came before the Court, in view of the fact that the question of mental competency was raised, the Court, with the consent of both counsel, ordered a mental examination and for that purpose authorized the defendant's transfer to Saint Elizabeths Hospital. On September 6, the Superintendent of Saint Elizabeths Hospital filed a report which read in part as follows:

 'It is our opinion that Mr. Lloyd Cooper is not suffering from a mental disease at the present time. There is nothing to indicate that the patient was mentally incompetent on or about November 17, 1960 and January 6, 1961, although we do not believe that we could offer a firm opinion in this regard because of the long lapse of time.'

 When this matter came on for final hearing counsel for the defendant withdrew and abandoned the charge of ineffective assistance of counsel and, in the light of the report of the Superintendent of Saint Elizabeths Hospital, he withdrew and abandoned the question of mental competency. The issue that was left and was tried, and in respect to which a great deal of testimony was given, was whether the plea of guilty was voluntary.

 A defendant who desires to withdraw a plea of guilty may proceed either under Rule 32(d) of the Federal Rules of Criminal Procedure, or, under some other circumstances, under 28 U.S.C. § 2255. At the request of counsel, which the Court regards as entirely proper, the Court will consider the matter under both provisions, since a pleading presented by a layman pro se should not be strictly construed or held to one specific theory. Rule 32(d) provides that a motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended, but -- and the rule goes on -- to correct manifest injustice the Court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea.

 In this instance the defendant expressly does not maintain that he was innocent. He does not deny that he committed the crimes to which he pleaded guilty. In fact, when he took the witness stand on cross-examination he admitted the details. He was arrested in flagrante delicto and a crowbar was seized from his person. In Watts v. United States, 107 U.S.App.D.C. 367, 371, 278 F.2d 247, 251, the Court of Appeals stated:

 'A claim of 'manifest injustice' is utterly incompatible with appellant's recently repeated ...

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