387 F2d 136 Kott v. Green

387 F.2d 136

John Alois KOTT, Petitioner-Appellant.
Lamoyne GREEN, Superintendent, Marion Correctional
Institute, Respondent-Appellee.

No. 17819.

United States Court of Appeals Sixth Circuit.

Dec. 27, 1967.

Samuel A. Bleicher, Toledo, Ohio, (Niki Z. Schwartz, Toledo, Ohio, on the brief), for appellant.

Leo J. Conway, Columbus, Ohio, (William B. Saxbe, Atty. Gen., Columbus, Ohio, on the brief), for appellee.

Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and CECIL, Senior Curcuit Judge.


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Appellant appeals from denial without hearing of his petition for writ of habeas corpus under 28 U.S.C. 2254 (Supp. II, 1965-1966).


The United States District Judge said in denying this petition:


'The only constitutional question presented was that petitioner was not advised of his right to counsel when he entered his plea of guilty. However, the petition states clearly that he in fact had counsel at his arraignment and plea. In fact, in paragraph 14 of the petition, the petitioner indicates that his counsel changed his plea to guilty. He has therefore not alleged any violation of his constitutional rights for which habeas corpus can be granted.'


However, on review of the record on appeal, it appears to this court that the petition filed October 21, 1966, alleges facts which seem designed to challenge the voluntariness of both appellant's confession (see Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959)) and his subsequent plea of guilty. (See Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956)).


These questions should be resolved at an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).


Reversed and remanded.