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    Joseph A. Miller v. Felix Rodriguez, Acting Warden, New Mexico State Penitentiary, 373 F.2d 26, 10th Cir. (1967)

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    The document is a court opinion regarding an appeal of the denial of a writ of habeas corpus. It summarizes that the appellant pled guilty to two counts of murder in 1959 but was not properly sentenced until 1965. The appellant argued that he did not waive his right to counsel at the preliminary hearing and that the six year delay in sentencing violated his right to a speedy trial. The court found that the evidence around the preliminary hearing was unclear and that the point was not raised in the lower court. The court also found that the six year delay was to correct an erroneous sentence, not purposeful or oppressive, so it did not violate the right to a speedy trial. The dismissal of the writ of habeas corpus was

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    Joseph A. Miller v. Felix Rodriguez, Acting Warden, New Mexico State Penitentiary, 373 F.2d 26, 10th Cir. (1967)

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    The document is a court opinion regarding an appeal of the denial of a writ of habeas corpus. It summarizes that the appellant pled guilty to two counts of murder in 1959 but was not properly sentenced until 1965. The appellant argued that he did not waive his right to counsel at the preliminary hearing and that the six year delay in sentencing violated his right to a speedy trial. The court found that the evidence around the preliminary hearing was unclear and that the point was not raised in the lower court. The court also found that the six year delay was to correct an erroneous sentence, not purposeful or oppressive, so it did not violate the right to a speedy trial. The dismissal of the writ of habeas corpus was

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    Filed: 1967-02-10 Precedential Status: Precedential Citations: 373 F.2d 26 Docket: 9076_1

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    The document is a court opinion regarding an appeal of the denial of a writ of habeas corpus. It summarizes that the appellant pled guilty to two counts of murder in 1959 but was not properly sentenced until 1965. The appellant argued that he did not waive his right to counsel at the preliminary hearing and that the six year delay in sentencing violated his right to a speedy trial. The court found that the evidence around the preliminary hearing was unclear and that the point was not raised in the lower court. The court also found that the six year delay was to correct an erroneous sentence, not purposeful or oppressive, so it did not violate the right to a speedy trial. The dismissal of the writ of habeas corpus was

    Copyright:

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

    Joseph A. Miller v. Felix Rodriguez, Acting Warden, New Mexico State Penitentiary, 373 F.2d 26, 10th Cir. (1967)

    Uploaded by

    Scribd Government Docs
    The document is a court opinion regarding an appeal of the denial of a writ of habeas corpus. It summarizes that the appellant pled guilty to two counts of murder in 1959 but was not properly sentenced until 1965. The appellant argued that he did not waive his right to counsel at the preliminary hearing and that the six year delay in sentencing violated his right to a speedy trial. The court found that the evidence around the preliminary hearing was unclear and that the point was not raised in the lower court. The court also found that the six year delay was to correct an erroneous sentence, not purposeful or oppressive, so it did not violate the right to a speedy trial. The dismissal of the writ of habeas corpus was

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    of 3

    373 F.

    2d 26

    Joseph A. MILLER, Appellant,


    v.
    Felix RODRIGUEZ, Acting Warden, New Mexico State
    Penitentiary, Appellee.
    No. 9076.

    United States Court of Appeals Tenth Circuit.


    February 10, 1967.
    1

    Fred M. Standley, Santa Fe, N. M., for appellant.

    L. D. Harris, Sp. Asst. Atty. Gen., Albuquerque, N. M. (Boston E. Witt, Atty.


    Gen., Santa Fe, N. M., with him on the brief), for appellee.

    Before PICKETT and SETH, Circuit Judges, and BROWN, District Judge.

    WESLEY E. BROWN, District Judge.

    The appellant Miller appeals from a denial of his application for a writ of
    habeas corpus. He raises two grounds for reversal. First, that he did not waive
    his right to counsel at his state preliminary hearing on a 1959 murder charge;
    and second, that the six year delay in imposing a correct sentence constitutes a
    denial of his right to a speedy trial as guaranteed by the Sixth Amendment to
    the Constitution of the United States.

    In 1959, Miller pled guilty to two counts of second degree murder, however, he
    was not then sentenced on these charges. He was at that time sentenced under
    the Habitual Criminal Act. In 1965 he petitioned for a writ of habeas corpus in
    the New Mexico Supreme Court. The court found the sentence void and on
    March 22, 1965 he was remanded to the District Court of Luna County to await
    imposition of sentences for the two murder convictions. The Supreme Court of
    New Mexico stated:

    "We * * * find that the petitioner, with the advice of able court-appointed
    counsel, intelligently, competently and understandingly entered guilty pleas to
    two separate charges of second degree murder; that petitioner was in nowise

    prejudiced because of the failure to appoint counsel at and prior to the


    preliminary examination, and that such failure does not require vacating the
    pleas of guilty entered in the district court." Miller v. Cox, 75 N.M. 65, 400
    P.2d 480.
    8

    The evidence of what transpired at a preliminary hearing held in connection


    with these murder cases is not clear. The testimony of Miller as to what
    occurred six years ago is vague and the only other evidence available is the
    testimony of a co-defendant at his federal habeas hearing. This is also unclear.
    One thing is clear, however, Miller was not represented by counsel and
    probably not offered appointed counsel at the state preliminary hearing. What
    occurred at the arraignment hearing before the state trial judge is equally
    unclear. Counsel was appointed before the arraignment and after consultation
    with him, Miller pled guilty to two counts of second degree murder rather than
    face execution if found guilty of two counts of first degree murder. When this
    sentence was voided Miller was returned for resentencing on the murder
    charges. He was represented by the same attorney at his resentencing. The
    sentencing judge was the district attorney who originally prosecuted the case.
    On April 6, 1965 the appellant was sentenced to not less than three years and
    no more than the term of his natural life on each murder charge the sentences to
    commence at the time he was improperly sentenced in October 1959.

    The first issue with respect to the waiver of counsel was not reached by the
    district court although much of the testimony of Miller was directed to
    circumstances surrounding his preliminary hearing and the advice given by
    counsel prior to his arraignment. The district court at the time of the pre-trial
    hearing advised counsel in part: "Well, suppose, after you have had an
    opportunity to go over the matter further, you amend the petition to present any
    points that you want to, that you feel has been presented and the state court
    remedies exhausted."1 This court has held that where the question was not
    raised by the motion filed in the trial court and is raised here for the first time
    that it would be precluded from considering the point. It may, however, still
    appropriately be presented in a habeas corpus proceeding. See Williams v.
    United States of America, CA 10, January 1967, 371 F.2d 141.

    10

    This brings us to a second contention and the only question determined by the
    court below, namely, that the six year delay in imposing a correct sentence, was
    a denial of appellant's constitutional right to a speedy trial as guaranteed by the
    Sixth Amendment to the Constitution of the United States.

    11

    The mere correction of a sentence promptly after it is discovered that the


    original sentence, imposed six years earlier, was erroneous does not support the

    constitutional burden Miller claims. In Pollard v. United States, 352 U.S. 354,
    77 S.Ct. 481, 1 L.Ed.2d 393 (1957), the trial court had entered a formal
    judgment and commitment in 1954, and set aside an erroneous judgment and
    order of probation entered two years earlier which was defective because of the
    defendant's absence from the courtroom at the time the judge formally stated
    the judgment. The court rejected petitioner's claim that he had been denied a
    speedy trial: "The delay must not be purposeful or oppressive. It was not here. It
    was accidental and was promptly remedied when discovered." 352 U.S. at 361,
    77 S.Ct. at 486, 1 L.Ed.2d 399. The delay must partake of the purposeful and
    oppressive, or even smack of deliberate obstruction on the part of the
    government, before relief will be granted. See United States v. Grabina, 309
    F.2d 783 (2d Cir. 1962). Mr. Justice Black wrote in Bozza v. United States, 330
    U.S. 160, 166-167, 67 S.Ct. 645, 649, 91 L.Ed. 818: "This Court has rejected
    the `doctrine that a prisoner, whose guilt is established by a regular verdict, is to
    escape punishment altogether because the court committed an error in passing
    the sentence.' [citation omitted] The Constitution does not require that
    sentencing should be a game in which a wrong move by the judge means
    immunity for the prisoner."
    12

    The dismissal of the District Court of the petition for a writ of habeas corpus is
    affirmed.

    Notes:
    1

    At the hearing before the court in a colloquy between the court and counsel, the
    following occurred:
    "Mr. Standley: I told you we were going to present the question of when he
    would represent counsel and the petitioner was presented the question of the
    long delay in sentencing.
    The Court: All right.
    Mr. Harris: I don't believe that has been presented in state court, Your Honor.
    You're talking about the sentence he is now serving, he just received from
    Judge Hodges.
    Mr. Standley: The one he first received, the one he is under now."

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