Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.
Petitioner, Bernard Robert Barkan, filed a motion in forma pauperis, pursuant to Title 28, U.S.C. § 2255, to vacate the judgment and sentence against him. The District Court appointed counsel for petitioner and held extensive hearings, at the conclusion of which the District Judge denied petitioner's motion. The District Judge wrote a lengthy, carefully reasoned opinion, in which he analyzed the evidence and explained in a wealth of detail the bases for his decision, (No. 5870, Oct. 5, 1961).
Petitioner states the contested issues as follows:
1. Is defendant Bernard R. Barkan entitled to have his sentences vacated on the ground that his convictions were procured through the use of perjured testimony known to be perjured by the prosecuting authorities and knowingly used by them to procure the convictions?
2. Is defendant Bernard R. Barkan entitled to have his sentences vacated on the ground that his convictions were procured through the use of perjured testimony irrespective of whether the prosecuting authorities knew of such perjury at the time it was committed?
3. Is defendant Bernard R. Barkan entitled to have his sentences vacated on the ground that, although under indictment for a capital crime, he did not have the assistance of two lawyers at his trial?
Petitioner was tried and convicted of violating the Federal Bank Robbery Statute, Title 18, U.S.C. § 2113, and of conspiracy to violate that statute. The capital counts to which he refers consisted of three counts charging him with kidnapping in violation of § 2113(e), which were dismissed on the government's motion at the end of his trial. Petitioner was sentenced to twelve years' imprisonment. He is now serving that sentence.
The District Court found that petitioner was advised of his rights by the Marshal and was particularly told that he could remain in the local jail for a 10-day period during which he could perfect his appeal. Petitioner waived this right in writing and requested removal to the designated institution of confinement for service of his sentence. No appeal was perfected.
At petitioner's trial one of the most damaging witnesses against petitioner was Cecil McAfee. The District Judge studied the complete testimony of this witness at the trial and summarized it in his opinion, setting out the detailed account of numerous conversations between petitioner, Mr. McAfee and one Daniel Lee Pritchard, both of whom were petitioner's tenants, during which plans were laid to rob the State Bank of Nebo, Nebo, Illinois; of various trips to the site of the crime; of the financing of the project by the petitioner; of the delivery of proceeds of the robbery to petitioner; of petitioner's maintaining custody of Mr. McAfee's pistol and then turning it back to him for use in the robbery. Mr. McAfee described how he and Mr. Pritchard perpetrated the crime at Nebo, Illinois, while petitioner remained in Chicago. Mr. McAfee gave this same account in several statements to the authorities at different occasions.
In support of his motion to vacate the judgment and sentence, petitioner offered retraction statements made by Mr. McAfee.
As Mr. McAfee explains it, he was temporarily confined as a "hold over" at the U. S. Penitentiary, Leavenworth, Kansas, en route to the U. S. Penitentiary at Atlanta, Georgia, to which he was being sent to serve a sentence of 10 years after conviction of the Nebo bank robbery. He was originally sentenced to 20 years, but on motion of an attorney appointed by the Court to represent him at the proceedings for reduction of sentence, the term was cut to 10 years.
By virtue of having waived his right to remain in the local jail for a ten-day period in which to perfect his appeal as indicated above, the petitioner, Mr. Barkan, was at the Leavenworth Penitentiary during the short period that Mr. McAfee remained there. Mr. McAfee, in his subsequent statement to the authorities, in which he repudiated the retractions, reported that petitioner and two other convicts sat beside him and remained with him until he signed a handwritten document which constituted a retraction of his testimony at Mr. Barkan's original trial, but which he was not permitted to read at that time. Several days later, an employee of the Penitentiary presented a typewritten statement for his signature. He read that statement. It consisted of a retraction of his testimony and exculpated petitioner. Mr. ...