Hahn v. Turner

¶1(concurring):

¶2I concur in the conclusion of the main opinion that the order releasing the defendant should be reversed. I place my concurrence on the ground stated as number (3) in the concluding paragraph thereof and the following observations:

¶3Under review here is a second petition in habeas corpus, filed more than a year after the time for appeal of petitioner’s conviction and sentence had expired, and while a previously filed petition of the same import had not been disposed of. It is my opinion that the second petition did not properly invoke the jurisdiction of the district court, nor of this court.

¶4As pointed out in the opinions of my colleagues, within 30 days of the judgment and sentence, a petition in habeas corpus challenging the district court’s procedure as invalid was filed with this court. Inasmuch as a determination of facts was required, the petition was referred to the district court for that purpose. It has never been returned to this court. The petitioner or his counsel were at liberty at any time to pursue that proceeding which made the same challenges to the sentencing procedure and judgment as the instant one.

¶5A primary difficulty with the instant proceeding is that our rules permit a petition for habeas corpus only where it is alleged that there has been no previous adjudication. This impediment should apply with special force where there had in fact been such a previous petition, but it had not been followed through to final disposition. However, setting that matter aside, there is a more fundamental and insuperable reason why this petition for writ of habeas corpus should fail.

¶6This court has announced and reiterated numerous times the necessary and basic rule that after the time allowed for an appeal has elapsed, the petitioner should not be permitted to raise matters which were known to him within time for appeal, and thus use a belated habeas corpus proceeding as a method of circumventing the requirements of appellate procedure. (See cases in footnote 1 of the main opinion.)

¶7While the foregoing in my judgment should be conclusive, there can be added thereto another proposition which to me is also inescapably persuasive that the writ should not have been granted. Even if this habeas corpus proceeding had been properly before the district court, it is my opinion that the district judge acted in error because of a misapprehension as to the applicable law. In the statements he made in the discussion he indicated that he felt compelled to rule as a matter of law that because the record made at the time this petitioner entered his plea before Judge Wahlquist did not affirmatively spell out the details as to the defendant’s knowledge of the offense and the penalty therefor, that he must be discharged. With that view I cannot agree.

¶8Under the view expressed in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, subsequent to and explanatory of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 it was his duty and prerogative to determine the facts as to whether the petitioner had knowingly and voluntarily entered his plea. The circumstances shown included the fact that he was represented by reputable, experienced and competent counsel, Gordon I. Huggins, who indicated to the court he had discussed the matter with the petitioner. References were made to several previous offenses he had committed; and that the attorney had been working with him and the Industrial School authorities. On the basis of the factual showing, and these presumptions: of the competence of coun*791sel; of ordinary intelligence of the petitioner; and of the regularity of proceedings ; the only reasonable deduction to be drawn therefrom is that the defendant knowingly and voluntarily entered his plea. In any event, the court should have found the fact one way or the other; and he should not have ordered the petitioner’s release because of statements of another court in a totally different set of circumstances.1

¶9For all of the foregoing reasons, it is my judgment that the order of the district court should be reversed; and that" the cause of this petitioner should be handled in the regular course of procedure as provided by our law. The remedy now open to him is through the Board of Pardons.