SARGENT et al. v. SWOPE, Warden, 108 F.2d 177

DENMAN, Circuit Judge. This is an appeal from an order refusing to free appellants from imprisonment on conviction of the crimes of manufacturing and passing counterfeit silver coins. Appellants petitioned the district judge for a writ of habeas corpus. The writ was granted, the prisoners brought before the court, and the appellee warden appeared and showed cause for the imprisonment.

The petition for the writ, verified by both petitioners, alleged that the petitioners had pleaded guilty to the charge, after advising the court they needed the assistance of counsel and were denied such counsel, and were advised by the court, “This court does not appoint counsel.” The burden of proof was on petitioners to establish these facts. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461.

There is evidence of one of the petitioners flatly contradicting the allegation concerning their request to the court in which they were convicted and the alleged remark of the district judge which, if believed, made liars, if not perjurers, of the petitioners and entitled the court below to reject their testimony as a whole and to hold that their burden of proof had not been maintained. We find no error. Affirmed.