Thomas Patrick Schram v. Hoyt C. Cupp, Warden, Oregon State Penitentiary

425 F.2d 612 Thomas Patrick SCHRAM, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Appellee. No. 24077. United States Court of Appeals, Ninth Circuit. April 17, 1970. Jack B. Schwartz (argued), Portland, Or., for appellant. Thomas H. Denney (argued), Asst. Atty. Gen., David H. Blunt, Asst. Atty. Gen., Lee Johnson, Atty. Gen., State of Oregon, Portland, Or., for appellee. Before BARNES, ELY and HUFSTEDLER, Circuit Judges. HUFSTEDLER, Circuit Judge: 1 Schram appeals from an order of the District Court dismissing, without an evidentiary hearing, his petition for federal habeas relief from an Oregon judgment. ( 28 U.S.C. §§ 2241-2254 .) He had exhausted his state remedies before he filed his petition for federal relief. 1 2 At issue is the constitutional validity of two prior convictions relied upon by an Oregon court to increase the penalty upon his last conviction from three years to twenty years under the provisions of Oregon's habitual offender statute. (Ore.Rev.Stat. § 168.015 et seq. ) 3 Schram's Oregon convictions began in 1946, when he pleaded guilty to one count of an information charging him with obtaining $20 by false pretenses. In 1948, he…

Schram appeals from an order of the District Court dismissing, without an evidentiary hearing, his petition for federal habeas relief from an Oregon judgment. ( 28 U.S.C. §§ 2241-2254 .) He had exhausted his state remedies before he filed his petition for federal relief.

At issue is the constitutional validity of two prior convictions relied upon by an Oregon court to increase the penalty upon his last conviction from three years to twenty years under the provisions of Oregon's habitual offender statute. (Ore.Rev.Stat. § 168.015 et seq.)

Schram’s Oregon convictions began in 1946, when he pleaded guilty to one count of an information charging him with obtaining $20 by false pretenses. In 1948, he was convicted upon two counts of unarmed robbery following his plea of guilty to each count. In 1952, he was convicted upon one count of unarmed robbery to which he had entered a guilty plea. Finally, in 1964, he was convicted upon one count of an information charging him with burglary not of a dwelling, for which he was initially sentenced to an indeterminate three-year term in the penitentiary. Thereafter, Oregon instituted recidivist proceedings charging him with felony convictions…

(dissenting).

I dissent. I am persuaded that the continuing vitality of Moore v. Michigan, 355 U.S. 155 , 78 S.Ct. 191 , 2 L.Ed. 2d 167 (1957) as recognized by Carnley v. Cochran, 369 U.S. 506, 516 , 82 S.Ct. 884 , 8 L.Ed.2d 70 (1962) — a case cited by the majority for its position — leaves the burden of proving inadequate waiver of counsel with the petitioner-appellant, and that he fails to meet that burden.

The Carnley Court specifically limited its holding in the following manner:

The clear declination of an “offer of counsel” that was approved by the Carnley opinion was recounted as follows by the Moore Court:

There is a striking similarity between the language of offer and waiver in Moore and in the ease before us. Specifically, the judgment roll for the 1952 conviction (Ex. 5) reads as follows:

Both records speak to the advice as to right to counsel tendered by the trial judge and the lack of desire for counsel on the part of the criminal defendant. Neither record contains specific language regarding compensation of such counsel by the court. As such, both records are “silent” in the manner indicated in the majority opinion. The majority finds that this fact compels its…