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Day v. United States

March 3, 1966

GEORGE BERNARD DAY, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE



Duffy and Swygert, Circuit Judges, and Grubb, Senior District Judge.

Author: Swygert

SWYGERT, Circuit Judge.

Orders of the district court denying two motions filed under section 2255 of the Judicial Code, 28 U.S.C. ยง 2255, are the subject of this appeal. These motions to vacate sentence were centered upon an alleged denial of the assistance of counsel and an assertedly invalid plea of guilty to a charge of interstate transportation of a forged security.*fn1

The petitioner, George Bernard Day, was indicted in March 1962. On April 5, 1962, he appeared for arraignment without counsel in the district court. After the charge was recited, he informed the district judge that he had employed counsel, but that counsel was unable to be present. In response to a question from the court the accused stated that his lawyer had instructed him to "enter a plea of not guilty with leave to withdraw." This plea was accepted. The petitioner was furnished with a copy of the indictment and was admitted to bail.

The petitioner reappeared before the district court for trial on November 8, 1962, seven months after the arraignment. At that time the following discussion occurred:

The Court: Do you have some matters?

Mr. Scroggins (Assistant United States Attorney): Yes, sir. In Case Number 6131, George Bernard Day is in Court, Your Honor, on an indictment returned by the Federal Grand Jury. Previously Mr. Day has entered a plea of not guilty to the charge, at that time he was represented by an attorney, the attorney has since withdrawn as counsel.

The Court: What do you say this morning, now, Mr. Day?

Mr. Day: Well, Your Honor, I'd like to withdraw this not guilty plea and plead guilty, and enter a petition for probation. I don't want counsel.

The Court: Well, the motion to withdraw the plea of not guilty is allowed, and the plea of guilty is received, and the matter is referred now to the probation officer of this Court for presentence investigation.

Mr. Scroggins: Mr. Day, at the present time --.

The Court: (Interposing) Is he out on bond?

Mr. Scroggins: (Continuing) -- is out on bond.

The Court: It will be continued in force and he'll be ordered to be back here then, after the presentence investigation. You ...


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