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    Ruben J. Flowers v. The State of Oklahoma and Ray Page, Warden, State Penitentiary, 356 F.2d 916, 10th Cir. (1966)

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    This document is a court case from 1966 in which Ruben Flowers appeals the denial of his petition for a writ of habeas corpus. Flowers was convicted of second-degree burglary after a prior felony conviction and sentenced to 20 years in prison. He argued his sentence was excessive, as the maximum for second-degree burglary alone was 7 years. The Oklahoma Court of Criminal Appeals directed the sentencing court to correct the records through a nunc pro tunc proceeding to reflect Flowers was convicted of burglary after a prior felony. Flowers appealed, arguing he should have been present and represented at the nunc pro tunc hearing. The Tenth Circuit Court of Appeals affirmed the denial, finding the nunc pro tunc proceeding corrected a cler

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    Ruben J. Flowers v. The State of Oklahoma and Ray Page, Warden, State Penitentiary, 356 F.2d 916, 10th Cir. (1966)

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    This document is a court case from 1966 in which Ruben Flowers appeals the denial of his petition for a writ of habeas corpus. Flowers was convicted of second-degree burglary after a prior felony conviction and sentenced to 20 years in prison. He argued his sentence was excessive, as the maximum for second-degree burglary alone was 7 years. The Oklahoma Court of Criminal Appeals directed the sentencing court to correct the records through a nunc pro tunc proceeding to reflect Flowers was convicted of burglary after a prior felony. Flowers appealed, arguing he should have been present and represented at the nunc pro tunc hearing. The Tenth Circuit Court of Appeals affirmed the denial, finding the nunc pro tunc proceeding corrected a cler

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    Filed: 1966-03-01 Precedential Status: Precedential Citations: 356 F.2d 916 Docket: 8513_1

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    This document is a court case from 1966 in which Ruben Flowers appeals the denial of his petition for a writ of habeas corpus. Flowers was convicted of second-degree burglary after a prior felony conviction and sentenced to 20 years in prison. He argued his sentence was excessive, as the maximum for second-degree burglary alone was 7 years. The Oklahoma Court of Criminal Appeals directed the sentencing court to correct the records through a nunc pro tunc proceeding to reflect Flowers was convicted of burglary after a prior felony. Flowers appealed, arguing he should have been present and represented at the nunc pro tunc hearing. The Tenth Circuit Court of Appeals affirmed the denial, finding the nunc pro tunc proceeding corrected a cler

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    17 views3 pages

    Ruben J. Flowers v. The State of Oklahoma and Ray Page, Warden, State Penitentiary, 356 F.2d 916, 10th Cir. (1966)

    Uploaded by

    Scribd Government Docs
    This document is a court case from 1966 in which Ruben Flowers appeals the denial of his petition for a writ of habeas corpus. Flowers was convicted of second-degree burglary after a prior felony conviction and sentenced to 20 years in prison. He argued his sentence was excessive, as the maximum for second-degree burglary alone was 7 years. The Oklahoma Court of Criminal Appeals directed the sentencing court to correct the records through a nunc pro tunc proceeding to reflect Flowers was convicted of burglary after a prior felony. Flowers appealed, arguing he should have been present and represented at the nunc pro tunc hearing. The Tenth Circuit Court of Appeals affirmed the denial, finding the nunc pro tunc proceeding corrected a cler

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    of 3

    356 F.

    2d 916

    Ruben J. FLOWERS, Appellant,


    v.
    The STATE OF OKLAHOMA and Ray Page, Warden, State
    Penitentiary, Appellee.
    No. 8513.

    United States Court of Appeals Tenth Circuit.


    March 1, 1966.

    William A. Hillhouse, II, Denver, Colo., for appellant.


    Charles L. Owens, Asst. Atty. Gen. (Charles Nesbitt, Atty. Gen., on the
    brief), for appellee.
    Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.
    HILL, Circuit Judge.

    Appellant, presently confined in the Oklahoma Penitentiary, appeals from a


    denial of his petition for a writ of habeas corpus.

    The undisputed record shows that he was charged in the District Court of
    Pottawatomie County, Oklahoma, with the crime of burglary in the second
    degree, after conviction of a felony. A jury trial was had and a verdict of guilty
    resulted. Under Oklahoma procedure,1 a two-stage trial is required when an
    accused is charged as Flowers was and such a two-stage trial was had in this
    case. In the first stage the state presents evidence as to the guilt of the accused
    of the particular crime charged which was second degree burglary and the jury
    then returns a verdict upon that phase of the accusation. If a guilty verdict is
    then returned, evidence of prior felony convictions is presented to the same jury
    for its consideration. The jury in this case first returned a verdict of guilty as to
    the crime of second degree burglary and after hearing evidence of former
    felony convictions again retired and then returned a verdict of "guilty of
    burglary in the second degree after a prior conviction of a felony" and assessed
    his punishment at twenty years imprisonment in the state penitentiary. No
    appeal was taken from this judgment of conviction and sentence.

    After incarceration in the penitentiary Flowers filed a petition for a writ of


    habeas corpus in the Oklahoma Court of Criminal Appeals pro se alleging that
    he had received an excessive sentence of twenty years because the statutory
    maximum penalty for the crime for which he was convicted was seven years.
    That court, after examining the pleadings and record, found that although
    Flowers had been tried, convicted and sentenced for the crime of burglary in the
    second degree, after a felony conviction, the journal entry of judgment recited
    that the accused was found guilty of second degree burglary without further
    reciting "after a felony conviction". That court denied the writ but directed the
    sentencing court to conduct a nunc pro tunc proceeding and correct the original
    court records. Such a proceeding was had in the sentencing court and the
    records were corrected.

    Appellant attempted to compel his presence at the nunc pro tunc proceeding but
    his requests were denied. He then filed his petition for a writ of habeas corpus
    in the Eastern District of Oklahoma, which was denied upon the basis of the
    pleadings and record and without an evidentiary hearing. There appellant urged
    that the Oklahoma Court of Criminal Appeals had no authority to direct the
    holding of a nunc pro tunc proceeding in the sentencing court because that
    court had lost jurisdiction and that he was denied his constitutional right to be
    present at the nunc pro tunc hearing and to be represented by counsel.

    Appellant urges two points here: (1) The trial court erred in denying his
    petition without an evidentiary hearing, and (2) the court also erred in not
    appointing counsel, pursuant to his request, to aid him in preparing his case in
    that court.

    We need not tarry long on either point. After reviewing the record, it does not
    appear that the petition for habeas corpus alleged the deprivation of a
    constitutional right. Correction of the journal entry of judgment to reflect the
    actual verdict was within the province of the state courts. The mistake corrected
    was a mere clerical error. The procedure to be followed was certainly a matter
    for the state to determine and does not here rise to constitutional proportions.
    Certainly no new judgment or sentence was imposed in the nunc pro tunc
    proceeding. Furthermore, petitioner does not contend that the judgment, as
    modified, is incorrect.

    The second point urged relates to the right to counsel at the habeas corpus
    proceeding below. In light of that court's disposition of the case with which we
    agree, there was no need for counsel. In any event, despite the ever increasing
    expansion of the right to counsel in criminal proceedings, habeas corpus is a
    civil proceeding, and it is settled law that there is no constitutional right to

    counsel in habeas corpus proceedings in federal courts. United States ex rel.


    Wissenfeld v. Wilkins, 2nd Cir., 281 F.2d 707; Dorsey v. Gill, 80
    U.S.App.D.C. 9, 148 F.2d 857, cert. denied, 325 U.S. 890, 65 S.Ct. 1580, 89
    L.Ed. 2003. In addition, as pointed out by the trial judge, there were no
    disputed factual issues in the case, the matter involved only questions of law
    and the court properly denied the petition on the basis of applicable law.
    8

    Affirmed.

    Notes:
    1

    22 O.S.Ann. 860

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