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TESTERMAN v. UNITED STATES

April 14, 1972

James Edward TESTERMAN, Petitioner,
v.
UNITED STATES of America, Respondent


Widener, District Judge.


The opinion of the court was delivered by: WIDENER

WIDENER, District Judge.

 Petitioner, a United States prisoner confined at the federal penitentiary in Leavenworth, Kansas, seeks relief by way of motion to vacate sentence pursuant to the provisions of 28 U.S.C. ยง 2255.

 Petitioner was charged with murdering an FBI agent. On April 15, 1942, in this court, he pleaded not guilty to that charge. A two-day jury trial followed, but no transcript of the trial is available, the nearest substitute being a summary of the evidence by the trial judge which is found in the original court file with the jury charge. On April 17, 1942, the jury returned a verdict of guilty of murder in the first degree without capital punishment, and petitioner was sentenced to life imprisonment. Testerman's conviction was not appealed. Petitioner was represented at his arraignment and trial by two very able and experienced attorneys, George M. Warren, Sr., Esquire, and Fred C. Parks, Esquire, both of whom are now deceased. *fn1" Mr. Warren was admitted to practice in the state courts of Virginia in 1909, in the state courts of Tennessee in 1912, and in this court in 1914. Mr. Parks was admitted to practice in the state courts of Virginia in 1920 and in this court in 1921. Both of these attorneys were appointed by the trial judge on March 25, 1942, approximately three weeks before the arraignment.

 The following is an excerpt from the order book of this court filed April 8, 1968 as an attachment to the Memorial for Mr. Parks at the Bar of this court on that day, he having died in February, 1968.

 
"Then came the finest moment I have seen in the courtroom.

 This is not an afterthought, but the report of a news reporter who was present at the trial of Testerman and whose impressions were recorded in the records of this court prior to the filing of the present petition.

 Petitioner alleges that he was denied his right to appeal his conviction. In his motion to vacate sentence, petitioner sets out the following:

 
"Now, it is submitted that the trial court did not have an obligation to inform the petitioner of his right to take an appeal. However, the petitioner did have that right and, if he was unaware of that right, then it cannot be deemed a waiver of the right to take an appeal. Johnson v. Zerbst, 304 U.S. 458 [58 S. Ct. 1019, 82 L. Ed. 1461] (1938). It is submitted that petitioner's appointed counsel had an obligation to inform him of his right ot [sic] take an appeal but this he did not do." [Emphasis petitioner's]

 After receiving a copy of the respondent's motion to dismiss, petitioner submitted to this court a reply to the government's memorandum of law. In his reply, petitioner's position is substantially changed *fn2" and his unawareness of his right to appeal is seriously cast in doubt. For in the reply he states:

 
"First, the petitioner claims he was deprived of his right to take an appeal from the judgment and sentence of his conviction because he was not made aware of that right following his trial in the criminal case. Now that is not to say that he did not indicate to his attorneys that he desired to take an appeal, in fact, petitioner asserts that he did ask his attorneys to perfect an appeal from his conviction, and the mere fact that no appeal was perfected does not now preclude him from doing so where he did not intentionally waive that right because of his unawareness in the matter some thirty (30) years past [Citation omitted]." [Emphasis petitioner's]

 Petitioner is not entitled to relief. In Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969), the court held that the Sixth Amendment requires that an indigent criminal defendant be advised by his attorney of his right to appeal, the manner of appeal, and the time in which to appeal, unless the trial court so advises the defendant. In Shiflett v. Commonwealth of Virginia, 447 F.2d 50 (4th Cir. 1971), the court, sitting en banc, specifically held that Nelson has prospective application only and that an attorney's failure to inform his client of the right to appeal is not a ground for relief for those petitioners whose time for instituting an appeal expired on or before June 25, 1969, the date of the Nelson decision.

 Many of the reasons stated in Shiflett for holding that Nelson should be given prospective application only are particularly applicable to the case under consideration. Shiflett recognized that the retroactive application of Nelson would be of little assistance to many petitioners, ". . . for in many cases, an appeal would not now be possible, due to the unavailability of a transcript and the inability of the parties to devise an acceptable substitute." Shiflett at 57. But see Turner, infra, 412 F.2d p. 490 as to a remedy. Testerman was tried in April, 1942, thirty years ago. Both of the attorneys who represented Testerman, the United States Attorney who prosecuted the case, and the Clerk of the Court who was present during the proceedings are all now dead. No transcript of the trial is available. Beginning in November, 1945 and continuing until January, 1970, petitioner has repeatedly requested the Clerk's office to send him a copy of the trial transcript. In response to these requests, the Clerk's ...


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