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Seybold v. Cady

August 20, 1970

JOHN ALLEN SEYBOLD, PETITIONER-APPELLANT,
v.
ELMER O. CADY, WARDEN, RESPONDENT-APPELLEE



Fairchild, and Pell, Circuit Judges and Eschbach, District Judge.*fn1

Author: Pell

PELL, Circuit Judge.

In 1964 the petitioner, Seybold, during the course of a trial in the criminal division of the Circuit Court of Milwaukee County, Wisconsin, entered guilty pleas to charges of armed robbery and attempted murder. He received indeterminate sentences of not more than twenty years to run consecutively and is still serving these in the Wisconsin state prison.

The present appeal is from the denial by the district court of two petitions for habeas corpus filed about July 1, 1969. There was no evidentiary hearing.

While it is quite difficult to separate Seybold's conclusionary chaff from factual wheat*fn2 it appears there would be adequate alleged items of the latter category to require an evidentiary hearing under 28 U.S.C. § 2243.

However, before making such a determination, it is necessary to decide whether such hearing is not here required because of Seybold's non-compliance with the requirement of exhaustion of state remedies under 28 U.S.C. § 2254.

We turn therefore to a review of the history of Seybold's post-conviction proceedings. He did not institute a direct appeal from his conviction but contends he was prevented from so doing by a seven-month delay in receiving a copy of the transcript of the trial.

Since Seybold did plead guilty and since the general rule is that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of non-jurisdictional defects and defense, including claims of violation of, at least, some constitutional rights prior to the plea (see Hawkins v. State, 26 Wis.2d 443, 132 N.W.2d 545 (1965), and cases there cited), it may be arguable as to whether Seybold was harmed by the delay in securing the transcript. While we recognize that Seybold is contending that his plea of guilty was improperly induced, which might under some circumstances be significant, we do not in this opinion, because of our ultimate disposition, purport to pass upon the question presented by the claim of demand of access to the trial transcript.

On March 12, 1965, Seybold filed a petition for an order to show cause for a writ of habeas corpus in the Wisconsin Supreme Court pursuant to the governing statutes of that state, Wisconsin Statutes (1967), § 292.01 et seq. In his petition while Seybold referred to the denial of the transcript, this appears*fn3 to have been merely responsive to a question as to the reason for not appealing and was not at the time urged as a ground for relief. Basically, the petition claims (1) that the plea of guilty was coerced by threats that Seybold's wife, a co-defendant in the trial, would otherwise receive a long-term sentence,*fn4 (2) that Seybold's court-appointed counsel whom he had unsuccessfully sought to discharge earlier in the trial did not inform him regarding his constitutional rights concerning "deals" and (3) that the "deal" included a proviso that it should not be mentioned in court thereby forcing Seybold to commit perjury.

The Wisconsin Supreme Court made the following order under date of March 25, 1965:

"Ordered that the petition for a writ of habeas corpus be and the same is hereby denied for the following reasons:

"1. There is no claim made by the petitioner that, being innocent, he entered a plea of guilty which he would not have entered but for the alleged 'deal.'

"2. There is no allegation that Judge Daley participated in the alleged 'deal', and the questions asked of petitioner by Judge Daley at the time that petitioner changed his plea to guilty negative such participation.

"3. A promise to recommend probation for petitioner's wife in return for petitioner changing his plea to guilty is not against public policy; and there is no claim made that petitioner's wife did not receive probation upon the recommendation of the ...


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