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MORDECAI v. UNITED STATES

March 8, 1966

Linton R. MORDECAI, Jr., Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: YOUNGDAHL

 On May 16, 1961, the Juvenile Court of the District of Columbia waived jurisdiction over the offenses for which petitioner Mordecai was subsequently convicted in this Court in two criminal cases, Nos. 450 and 451-61. *fn1" At arraignment in these cases, petitioner pleaded not guilty. Subsequently, at the request of his retained counsel, he was sent to Saint Elizabeths Hospital for a mental examination. He was returned from the Hospital in September 1961, with a report from the Superintendent stating "that Linton Mordecai, Jr. is mentally competent to understand the nature of the proceedings against him and to consult properly with counsel in his own defense. We find no evidence of mental disease existing at the present time, nor on or about May 9, and 10, 1961 [the time of the commission of the alleged offenses]. He is not suffering from mental deficiency." On January 15, 1962, at a hearing before this Court, petitioner was allowed to withdraw the pleas of not guilty which he had previously entered and enter pleas of guilty to one count of assault with intent to rob in case No. 450-61, and one count of rape in case No. 451-61. On March 9, 1962, he was sentenced by this Court under a provision of the Federal Youth Corrections Act, 18 U.S.C. § 5010(c) (1964), "for a period of twenty years or until properly discharged by the Youth Correction Division of the Board of Parole."

 Petitioner has moved under 28 U.S.C. § 2255 (1964) to vacate this sentence and set aside the judgments which were entered upon his guilty pleas. *fn2" Four grounds are asserted by petitioner to justify awarding the relief which he is seeking: (1) that his retained counsel inadequately assisted him at the time of the proceedings brought against him in the District Court (2) that his guilty pleas were involuntary in that they were induced by promises of a light sentence, (3) that he was not mentally competent at the time he entered his guilty pleas, and (4) that the procedure whereby the Juvenile Court waived jurisdiction over him was invalid because he was not represented by counsel at the time. The Court shall consider these claims, seriatim.

 I. Inadequate Assistance of Counsel

 Petitioner's contention that he was without effective assistance of counsel at the time of the proceedings against him in this Court has no merit. He claims that his retained counsel did not tell him that two confessions which he made would not be admissible against him at trial *fn3" and that counsel failed to look into his claim that at the time of the commission of the alleged offenses he was under the influence of a drug and therefore not legally accountable for his actions.

 Whether a petitioner may complain of the ineffective assistance of counsel whom he has retained is subject to great doubt. The Fifth Circuit has held that he may not. Hamilton v. Wilkinson, 271 F.2d 278 (5th Cir. 1959). Cf. Martin v. United States, 101 U.S.App.D.C. 329, 330, 248 F.2d 651, 652 (1957). This issue need not be decided in the case at bar, however, for, even assuming, arguendo, that the effectiveness of the assistance of retained counsel may be challenged, the errors which petitioner claims were committed by counsel reveal that his challenge cannot succeed in this case.

 In Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, cert. denied, 358 U.S. 847, 79 S. Ct. 74, 3 L. Ed. 2d 82 (1958), petitioner complained of the ineffective assistance of counsel who told him that "there is nothing I can do for you" when, in fact, there were things which he allegedly might have done - including moving to suppress an illegally secured confession. The Court refused to overturn a guilty plea in that case holding, first, that convictions should not be overturned unless the proceedings amount to a "mockery of justice," and, second, that in a case involving a guilty plea the only test is whether the plea was voluntarily and understandingly entered. *fn4"

 The Court elaborated by saying that a lawyer's "bad" advice which induces a guilty plea "does not itself make out involuntariness," id. at 155, 256 F.2d at 710, and that "'understandingly' refers merely to the meaning of the charge, and what acts amount to being guilty of the charge, and the consequences of pleading guilty thereto, rather than to dilatory or evidentiary defenses," ibid. *fn5"

 Even if this Court were free to depart from the rule in Edwards, the most it could do would be to hold a hearing to determine the factual issue of whether petitioner was effectively assisted by his counsel. Having in fact heard testimony in response to petitioner's allegation that counsel improperly advised him to plead guilty, the Court accepts as true and as rendered in good faith the opinion of counsel that the legally competent evidence which the government could have presented in its case against Mordecai was extremely strong and that guilty pleas were the most satisfactory disposition available to him. The Court also finds no support in the testimony for petitioner's allegation that he was denied effective legal assistance because counsel failed to investigate his claim that, at the time of the commission of the alleged crimes, he was acting under the influence of drugs. Counsel's successful efforts to have petitioner sent to Saint Elizabeths Hospital for a mental examination and the Hospital report finding that petitioner had no mental illness indicate that counsel had effectively discharged his duty to investigate petitioner's possible insanity defense.

 II. Guilty Pleas Induced by Promises of Leniency

 In Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962), the Supreme Court held that petitioner was entitled to a hearing to determine the truthfulness of his allegation that his guilty plea was induced by the promise of an Assistant United States Attorney that, if he pleaded guilty, he would receive a sentence of no more than twenty years. On the basis of this decision - though not without doubt that the clarity of petitioner's professions of voluntariness at the time of entering his pleas may have made his claim sufficiently "incredible" to justify denial of a hearing, see id. at 495, 82 S. Ct. 510 - a hearing was granted to determine whether petitioner's allegations were true.

 At the time petitioner entered his guilty pleas, the Court conducted the following thorough examination into his motives for and understanding of his pleas:

 
THE COURT: Counsel, you are attorney for the defendant, Linton Mordecai, Jr., in this case?
 
MR. JONES: I am, sir.
 
THE COURT: Do you wish to make a statement?
 
MR. JONES: Yes, I do. If Your Honor please, I represent the defendant Linton Mordecai, Jr., here, in which he is indicted in two numbers, Criminal No. 451-61 and Criminal No. 450-61.
 
I have fully advised my client on many occasions. I have got his advice and I have also submitted to the Court for a portion of this permanent record a statement in this defendant's own handwriting which I wish the Court to consider. And with that advice which I have given my client, he desires at this time to withdraw his plea of not guilty, heretofore entered, and in Criminal Action No. 451-61, he wishes to enter a plea to Count No. 3. He understands that that count charges rape; and in Criminal Action No. 450-61, he wishes to withdraw his plea of not guilty heretofore entered, and enter a plea to the fifth count, which is assault with intent to rob. He understands the significance of Count Three and I have fully explained to him the significance of Count Five.
 
THE COURT: Mr. Mordecai, you heard the statement of your lawyer?
 
THE COURT: And do you agree that that statement is a correct and true statement?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Your lawyer has talked to you about the seriousness of this case and he has explained to you fully, as he has indicated. Do you agree with that?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Do you understand, Mr. Mordecai, that if you desire a jury trial, you may have a jury trial? You are entitled to that. If you plead guilty to the two offenses, you will not have a jury trial. All that will be left, then, will be for the Court to pass sentence after getting a presentence investigation report by the Probation Office. Do you understand that?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Has any promise been made to you by the United States District Attorney's office, by your attorney, by the Court, or by anyone else as to what your ...

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