Robert John Austin v. United States

This is an appeal from an order of the district court denying relief on a petition under 28 U.S.C. § 2255 without holding an evidentiary hearing.

Appellant was indicted for bank robbery under 18 U.S.C. § 2113 (a). Appellant, represented by counsel, entered a plea of guilty to the charge. On May 3, 1965, he was sentenced to a term of ten years, under the provisions of 18 U.S.C. § 4208 (a) (2). The court recommended he be considered for parole after serving two years.

His § 2255 petition filed February 17, 1967, set forth three grounds: (1) that he was denied assistance of counsel when taken before the United States Commissioner for arraignment, and waived a preliminary hearing; (2) that he was sentenced erroneously in that the trial court considered prior offenses of which the appellant alleges he was unaware; (3) that he was induced to make a confession and subsequently to plead guilty by agents of the FBI.

On March 3, 1967, the district court denied the petition under 28 U.S.C. § 2255 without an evidentiary hearing. Appellant filed notice of appeal from the order denying him relief. On June 1, 1967, appellant filed a motion to set aside the court’s order of March 3,1967. Since…

(dissenting) :

I dissent and would remand for a hearing limited to appellant’s claim with respect to an induced plea of guilty. In my judgment his claim of inducement has substance.

The majority, in denying hearing, does not accept the truth of appellant’s factual assertions; nor does it recognize a factual dispute to exist with respect to them. It finds appellant’s claim of inducement to be insubstantial for the reason that as matter of law it cannot be taken to be true since his admissions and confessions provide the obvious motivating cause for his plea beyond reasonable dispute.

In support of its position the majority asserts that appellant has, apart from his plea, freely admitted that he committed the offense charged. This, I think, goes too far. He has admitted taking the money — an offense under § 2113(b) — and has characterized it as “robbing” a bank. He has not, however (aside from the concessions he says he was induced to make), admitted force, violence or intimidation, to bring the offense within § 2113(a) at double the penalty. 1 His position in this respect is made clear by his petition, quoted in part in the majority’s opinion.

Assuming that one who has…

408 F.2d 808 Robert John AUSTIN, Appellant, v. UNITED STATES of America, Appellee. No. 23140. United States Court of Appeals Ninth Circuit. March 5, 1969. Rehearing Denied April 30, 1969. Robert John Austin, in pro. per. Wm. M. Byrne, Jr., U. S. Atty., Robert L. Brosio, John W. Hornbeck, Asst. U. S. Attys., Los Angeles, Cal., for appellee. Before BARNES, MERRILL and CARTER, Circuit Judges. JAMES M. CARTER, Circuit Judge: 1 This is an appeal from an order of the district court denying relief on a petition under 28 U.S.C. § 2255 without holding an evidentiary hearing. 2 Appellant was indicted for bank robbery under 18 U.S.C. § 2113 (a). Appellant, represented by counsel, entered a plea of guilty to the charge. On May 3, 1965, he was sentenced to a term of ten years, under the provisions of 18 U.S.C. § 4208 (a) (2). The court recommended he be considered for parole after serving two years. 3 His § 2255 petition filed February 17, 1967, set forth three grounds: (1) that he was denied assistance of counsel when taken before the United States Commissioner for arraignment, and waived a preliminary hearing; (2) that he was sentenced erroneously in that the trial court…