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

(dissenting).

I respectfully dissent. I cannot accept the reasoning of the majority in this case, which affects a substantial incursion on the fact finding powers of the federal habeas corpus judge, and dilutes, indirectly but significantly, settled principles of burden of proof in federal collateral proceedings.

As to the validity of appellant's waiver of counsel in the 1952 proceeding, I find myself again in substantial disagreement with the majority. I first note the factual findings of both the state and federal trial courts.

The Oregon Supreme Court recited the findings of the state trial court in the following manner:

The federal habeas judge found, on the basis of the state record in both the original and postconviction proceedings:

In spite of the foregoing findings of fact, the majority holds that Sehram “prima facie sustained” his burden of proving nonintelligent waiver simply by introducing the record of the Oregon postconviction evidentiary hearing in which the court found that he had not been told specifically that an appointed attorney would be compensated by the state. (See quotation from opinion supra.) I am convinced, as were both the state and federal…

436 F.2d 692 Thomas Patrick SCHRAM, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Appellee. No. 24077. United States Court of Appeals, Ninth Circuit. November 25, 1970. Jack B. Schwartz (argued), Portland, Or., for appellant. Thomas H. Denney (argued), David H. Blunt, Asst. Attys. Gen., Lee Johnson, Atty. Gen., State of Oregon, Portland, Or., for appellee. Before BARNES, ELY, and HUFSTEDLER, Circuit Judges. PER CURIAM. 1 The majority opinion and the dissenting opinion heretofore filed on April 17, 1970, are ordered withdrawn. 2 The annexed majority opinion in which Circuit Judges ELY and HUFSTEDLER concur and the dissenting opinion of Circuit Judge BARNES are ordered filed. 3 The petition for rehearing is dismissed as moot. HUFSTEDLER, Circuit Judge: 4 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 5 At issue is the constitutional validity of two prior convictions relied upon by an Oregon court to increase the penalty upon his last…

The majority opinion and the dissenting opinion heretofore filed on April 17, 1970, are ordered withdrawn.

The annexed majority opinion in which Circuit Judges ELY and HUF-STEDLER concur and the dissenting opinion of Circuit Judge BARNES are ordered filed.

The petition for rehearing is dismissed as moot.

HUFSTEDLER, Circuit Judge:

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…