346 F.

2d 301

James E. MILLER, Appellant,

v.
Sherman H. CROUSE, Warden, Kansas State Penitentiary,
Lansing, Kansas, Appellee.
No. 7927.

United States Court of Appeals Tenth Circuit.

June 2, 1965.

James L. Cunningham, Denver, Colo., for appellant.

William M. Ferguson, Atty. Gen. of Kansas, and Richard H. Seaton, Asst.
Atty. Gen. of Kansas, for appellee.
Before PICKETT and LEWIS, Circuit Judges, and DAUGHERTY,
District Judge.
DAUGHERTY, District Judge.
This is an appeal for review of the action taken by the United States
District Court for the District of Kansas upon a petition for a writ of
habeas corpus filed by a state prisoner in the Kansas State Penitentiary.
The petitioner, the appellant herein, was charged by an information filed
by the Acting County Attorney in and for Franklin County, Kansas, with
two counts of forgery and two counts of passing forged instruments.1 He
entered a plea of guilty to counts 1 and 3 and sentence was imposed by the
District Court of Franklin County, Kansas. The same information by
which the appellant herein was charged also charged two co-defendants
with committing the four offenses involved. The appellant appeared
before the State District Court for arraignment, and having no counsel he
was appointed counsel pursuant to the requirements of a Kansas statute.2
The transcript of the arraignment proceedings, which is before the Court,
indicates that the matter of the arraignment was adjourned or continued to
permit the appellant and his court-appointed counsel to confer fully about
the matter at hand. After this conference was had, the petitioner appeared
again before the trial court with his counsel, and counsel announced that
the petitioner would waive the formal reading of the indictment and

further announced that the petitioner desired to enter a plea of guilty as to

counts 1 and 3 of the information. These are the two counts that involve
forgery.3 The Court then inquired of the appellant if it was his personal
desire to enter a plea of guilty to forging the two instruments involved.
The appellant affirmed that it was in fact his desire to so enter such a plea.
The other two counts which involved the passing of forged instruments
were dismissed by the State. Upon these pleas of guilty, and immediately
following the acceptance of the plea of guilty by the State Court Judge,
the defendant was sentenced on each count to a term under the applicable
Kansas indeterminate sentence law,4 the sentences to run concurrently.
Thereafter, in December of 1963, the appellant petitioned the State
District Court of Leavenworth, Kansas, for a writ of habeas corpus. In his
application the appellant contended he was being illegally and unlawfully
restrained for the reasons as set out in his numbered contentions: First,
that no public offense had in fact been committed or in law could this
offense have been committed and charged to him for the reason that he
was in fact illiterate and being unable to read and write was, therefore,
incapable of being guilty of the crime of forgery; Secondly, that the
prosecutor of Franklin County, Kansas, had been guilty of malfeasance by
the fact of his filing an information charging forgery against him under
the above circumstances. In the latter part of this pro se application for a
writ in the State Court the appellant pointed out that he had informed the
trial judge that he could not read nor write and knowing the same the
judge did not advise him of the nature of the charge against him and as to
the possible punishment or sentence he could receive, or to his right to a
trial by jury. The application for a writ of habeas corpus in the State Court
did not set forth any factual allegations to substantiate the claimed wrongs
alleged to have been done the petitioner, but the petitioner relied upon the
certified transcript of his arraignment proceeding that was attached to his
application as an exhibit. The petitioner requested no counsel in this State
habeas corpus proceeding and none was appointed. On December 12,
1963, the appellant's petition to the State District Court was denied
without a hearing, the State District Court stating that after considering
the petition as filed it was found that the petitioner had not made a prima
facie showing as to the illegality of his restraint. By this language we must
assume that the State District Court Judge considered each and every
material allegation contained in the application for a writ and found that
none on their face and as supported by the record were of merit in law or
in fact.
The State District Court in this habeas corpus proceeding determined by
its order that the judgment entered by the trial court in Franklin County

was not susceptible to collateral attack by the allegations made by the

petitioner in his application. This interpretation so far as it deals with state
law and state procedures is conclusive upon the Federal Courts unless a
showing is made that the petitioner was denied any primary rights
safeguarded by the United States Constitution in the state court
proceedings. In regard to such federal questions, of course, a finding by
the State Court is not conclusive and binding upon the Federal Courts.
However, the writ of habeas corpus cannot be used as a substitute for an
appeal and alleged errors in a state court proceeding in exercise of
jurisdiction over a case properly before it cannot be reviewed by federal
habeas corpus unless there has been a deprivation of constitutional rights
such as to render a judgment void or to amount to a denial of due process.
Bizup v. Tinsley, D.C., 316 F.2d 284; Gay v. Graham, 10 Cir., 269 F.2d
482; Smith v. Hand, 10 Cir., 305 F.2d 373, cert. denied 371 U.S. 870, 83
S.Ct. 135, 9 L.Ed.2d 107.
No appeal of this denial of the application for a writ of habeas corpus by
the State Court was prosecuted by the appellant herein to the appellate
courts of the State of Kansas.
It is noted that in his initial application for a writ to the State Court, the
petitioner appellant herein alleges as the gravamen of his complaint
that because of the singular fact that he was and is to some degree
illiterate, that fact standing alone makes it impossible under the law for
him to commit and be guilty of the crime of forgery, that is to say, a
violation of Kansas G.S. 21-608. The appellant in that pleading to the
State Court in no way attempted to point out his innocence or that he was
perhaps only an innocent accompanying party to the real culprit in this
crime. Nor, does he attempt to point out that he was not in fact really
aware of the nature of the charge against him or of the possible
punishment that could be inflicted upon him as a result of a plea of guilty.
Nor, does the petitioner attempt to assert that his counsel did not
adequately represent him nor properly advise him of the nature of the
charges and his predicament as he stood before the State Court. From his
own statement the petitioner points out "at best he could have only been
charged with aiding and abetting the commission of a felony", thereby
indicating his awareness of the fact that under Kansas law, one need not
be guilty only as a principal before being criminally responsible for his
involvement in an illegal act.5
After receiving no relief on his application to the State District Court and
while still in the custody of the State of Kansas the appellant filed, on a
printed form provided for such purpose, a petition for a writ of habeas

corpus in the Federal Court below with a hand-written brief attached in

support thereof and an application to proceed in forma pauperis. An order
was entered by the Court below on January 28, 1964, denying the
application of the petitioner to prosecute his action in forma pauperis. On
March 19, 1964, the appellant filed a pro se pleading styled "Motion for a
Rehearing" directed to the Court and requesting reconsideration of the
application to proceed in forma pauperis. In response to this motion, the
District Court entered its order of March 19, 1964, from which this appeal
is taken. The Court, though faced with a motion regarding the prosecution
of the action in forma pauperis, chose apparently to treat the appellant's
petition for a writ on the merits, or so we have considered his order, and,
therefore, we treat this appeal as one from the denial of the petition on the
merits without a hearing. The petitioner in stating the grounds on which
he based his allegation that he was being held in State custody unlawfully,
stated (1) that he had received no relief with reference to his restraint in
his previously filed State habeas corpus proceeding; (2) that no public
offense was committed in fact or in law for the reason that it is mandatory
that one so accused and convicted of forgery be able to read and write,
and, thus, therefore, no public offense was in fact involved in the charge
against him and he was incapable of committing the act or being guilty of
the crime of forgery; (3) that the state prosecutor was guilty of
malfeasance in proceeding against him by information for such public
offense under the circumstances of his being in fact unable to read and
write; and (4) in his pro se brief in support of the petition, he alleges or
complains that he was not advised by the State trial court of the nature of
the charge against him, the punishment therefor, nor of his right to trial by
jury. No factual allegations are stated either in the petition nor the brief
attached thereto in support of any of the foregoing contentions made by
the appellant. The petitioner apparently again relied solely upon the
certified transcript of the arraignment proceeding had before the State trial
court, a copy of which was attached to his federal court habeas corpus
petition as an exhibit.
The Court below denied the petition for writ without a hearing, and
rightly so, we find. The contentions enumerated, (1), (2) and (3) above, as
set out in the appellant's petition in this case, deal with matters that are
confined to the purview of the State courts. As stated earlier, the
gravamen of the appellant's complaints herein and in the State court has to
do with his illiteracy as it relates to his ability to commit the crime
charged and to be found in fact and in law guilty thereof. It goes almost
without saying that it is not a legal prerequisite to be literate in order to be
guilty of a violation of the law. As the appellant himself pointed out in his
State court petition, and was apparently manifestly aware, one can be

guilty as a principal for violation of a felony when in law and in fact he

aids and abets the commission of a crime. The transcript herein of the
arraignment proceeding makes it to this Court manifestly clear that the
appellant was admitting to the State District Judge his guilt of the crime
charged by reason of his involvement in the crime charged apparently
with, though the record does not reflect this, one or more of his codefendants who were also charged in the information filed in Franklin
County, Kansas. But these matters as to the ability or inability, as the case
may be, of one possessed with certain attributes, or the lack thereof, to
commit in fact or in law a state crime, are matters that are strictly within
the purview of the courts of the State of Kansas. The State District Court
to which application for relief was initially made has, in effect, found no
merit to the appellant's contentions and allegations. We find no manifest
injustice that would amount to a denial of the appellant's constitutional
rights so as to justify our interference with the decision reached therein.
As to the unsupported bare allegations of the appellant that he was not
advised by the State court judge of the nature of the charges against him
or the punishment therefor, and his right to trial by a jury, we note that the
Court below did not treat these allegations specifically. We can only
assume that they were considered by the federal court below to be of no
merit, that is to say, to raise no issue of federal cognizance such as would
require a hearing thereon in view of the entire record as it stood before the
federal District Court.
Viewed in the light of the certified transcript of the arraignment
proceeding, we agree that these allegations raised no such issue as would
require an evidentiary hearing.
The appellant's court-appointed counsel in his argument and brief raises
before this Court two basic propositions: First, that the appellant was
denied due process of law as provided in the Fourteenth Amendment of
the United States Constitution in the State trial court by reason of the
failure of the Court to insure that the appellant understood the nature of
and possible sentence involved in the offense charged and; Secondly, was
denied due process of law by the lack of effective assistance of counsel in
the State Court proceeding. Thus confining our present inquiry to these
propositions we state initially that the proposition regarding lack of
effective assistance of counsel was not presented either to the State court
nor the Court below and, therefore, will not be considered by this Court
initially on appeal. Way v. United States, 10 Cir., 276 F.2d 912;
Richardson v. United States, 10 Cir., 199 F.2d 333. As to the proposition
regarding failure of the trial court to insure that the appellant understood

the nature of the charges and the punishment involved, the record before
us refutes that argument. The appellant was furnished counsel and
conferred with him prior to any action being further taken in the case.
Counsel stated into the record that he discussed the matter fully with the
appellant. The record does show that the appellant advised the Court of
his illiteracy, and, upon further questioning by the Court, counsel then
advised the Court that he had discussed the matter fully with the appellant.
The reading of the indictment was waived in open court. Thus, the formal
announcement of the charges and possible sentence was foregone by the
appellant with the assistance of counsel. It is, of course, a fundamental
basic right that an accused be advised of the nature of the charges against
him and the consequences of a plea of guilty. Smith v. O'Grady, 312 U.S.
329, 61 S.Ct. 572, 85 L.Ed. 859. This is implicit in a knowing entry of a
plea of guilty. It is not, however, mandatory that the judge ritualistically
and personally advise the accused of these matters. It is sufficient that the
accused be in fact aware of such regardless of the source from where the
information comes. The court, of course, has a duty to satisfy itself that
the accused is aware of the nature of the charges and the consequences of
a plea of guilty, but no specific formula need be followed. We can think of
no better way, aside from the trial court performing the function itself, of
sufficiently putting an accused on real notice of these matters than through
his own lawyer. Such was the case here, as the record reflects. It is noted
that the appellant in his pleadings below and in State court has never
alleged he in fact had no real notice of the nature of the charges against
him nor that he was prejudiced in any way by the failure of the trial judge
to inquire into the matter. Whether there has been a denial of due process
must be adjudged from the facts as they exist in each particular case and
from a totality of such facts. Brock v. Hudspeth, 10 Cir., 111 F.2d 447. It
will not avail the appellant to raise the issue now that the judge should
have personally insured that the appellant was properly advised by his
attorney of the nature of the charges. To be sure, the appellant herein
would have nothing to even urge in this regard had a more precise and
affirmative statement appeared in the record as to the appellant being fully
advised in the matter. But, as Judge Learned Hand said in the case of
United States v. Paglia, 2 Cir., 190 F.2d 445, "Justice is not a game; there
is no constitutional right to `throw dust in a juryman's eyes nor hoodwink
a judge who is not overwise.'"
Appellant's counsel before this Court argues that although the appellant
did not precisely articulate constitutional issues in his petition for a writ in
the court below, the petition contained sufficient facts to raise
constitutional issues and, therefore, for such reason an evidentiary hearing
should have been held. To say that constitutional issues were not

"precisely articulated" is to be more than charitable in one's choice of

words. The pro se allegations of a layman untrained in the skill of drawing
proper pleadings and allegations are to be given certainly a liberal
interpretation and treatment. However, substance cannot be provided
where none exists and factual support for inferences from allegations
made cannot be applied where none have even been intimated and
particularly where such inferences are refuted by the record before the
court. As pointed out herein, the appellant made bare allegations
unsupported by factual allegations covering his not being advised by the
trial court of his rights; no allegation was made that the appellant did not
in fact understand the charges and the punishment; no allegation is made
that the appellant was in any way prejudiced; and, finally, the record
sufficiently shows that the appellant was advised by counsel of these
matters and that no manifest injustice was done. The matter of counsel's
inability to prepare and advise appellant was never raised below and there
was no such showing in the allegations below.

In accordance with the admonition of the United States Supreme Court in

Townsend v. Sain, 372 U.S. 293, at page 316, 83 S.Ct. 745, 9 L.Ed.2d 770, we
have carefully scrutinized the entire record in a search for denial of
fundamental liberties or due process and have reached the same conclusion as
reached by the State Court and the District Court below. The act of the
sentencing court is presumed to be valid and if by any reasonable construction
of the arraignment proceeding the validity of the judgment can be sustained, we
should uphold said proceedings. Kreuter v. United States, 10 Cir., 201 F.2d 33;
Ex parte Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154. The burden in a
habeas corpus proceeding is upon the petitioner to allege primary facts and not
inferences that show, notwithstanding the strong presumption of constitutional
regularity in judicial proceedings, that in his particular prosecution the State so
departed from constitutional requirements as to justify federal court intervention
to protect his rights. This principle, of course, must be construed and applied so
as to protect and preserve and not destroy constitutional safeguards. A judge of
the United States courts to whom a petition for habeas corpus is addressed
should always be alert to examine the allegations carefully and examine the
facts for himself when, if true, as alleged they make the State Court proceeding
void due to a constitutional defect. However, a judgment cannot be lightly set
aside by collateral attack even on habeas corpus. When collaterally attacked a
judgment still carries with it a presumption of regularity. Johnson v. Zerbst, 304
U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Ex parte Cuddy, supra.

We hold herein, after an examination and evaluation of the entire record that

the totality of facts do not show that the petitioner has shown that he was
denied his rights by the United States Constitution and accordingly we hold the
petition for a writ of habeas corpus was properly denied and dismissed without
an evidentiary hearing. In thus so holding we do not reach the issues of the
Motion to Dismiss filed herein by appellee.
3

Affirmed.

Notes:
1

State of Kansas v. James E. Miller, Case No. 3215, Franklin County, Kansas,
filed July 19, 1963, charging violations of Kansas G.S. 21-608 and 21-609

Kansas G.S. 1961, Supp. 62-1304; or Laws of Kansas, 1963, Ch. 305, Sec. 1

Kansas G.S. 21-608

Kansas G.S. 21-631

Kansas G.S. 62-1016