Charles H. Plummer, Jr. v. United States
260 F.2d 729
D.C. Cir.
1958
Check Treatment

*1 the ad- opposite as to conclusions rants missibility of the evidence. controversy money against in evidence admitted a new

appellant. He is entitled suppres- shall be evidence

sed. proceed- for remanded Reversed opinion. consistent PLUMMER, Jr., H.

Charles STATES

UNITED Appeals United States Court Harrison, Mr. Bruce R. Washington, of Columbia Circuit (appointed by Court), Argued 1958. June appellant. Decided Oct. Bonner, Mr. Walter J. Atty., with whom Messrs. Oliver

U. S. Carl W. Belcher and Joel D. Blackwell, were on brief, Circuit Judge, and Bazelon, Judge, Circuit Hastie, United States Circuit,* the Third Judge. Burgee, PER CURIAM. This is an from denial with- hearing of a motion to vacate sen- 28 U.S.C.

tence. After convic- charge taking on a immoral and indecent liberties on a female child elev- old, appellant en months was sentenced October years. judg- term of three to nine was affirmed ment this Court on peal. States, 1956, Plummer v. United * Sitting by designation pursuant provisions 291(a). of 28 U.S.C. § *2 730 appeal. it Appellant, represented on Council cannot be raised 77, Clemmer, 74, 75, counsel, v. 85 by appointed contends motion, 1949, 25, denied, 22, 177 F.2d certiorari a

was entitled his 540; 880, 150, grounds: L.Ed. citing first, mo- 338 94 U.S. 70 S.Ct. that his two 1955, allegations; States, Cir., presented Walker 7 v. United substantial his point 80, second, raised 218 that a not F.2d en- apparent from the record motion but argument, If this for the first raised hearing. to a titled him any appeal, merit counsel on fact, in law and relief on that basis prepared motion, which was necessarily not ing. hold foreclosed by appellant of coun un A second or motion successive vacating grounds alleged sel, four may 2255 der be under cer entertained § illegal illegal arrest, (2) sentence: tain circumstances at the discretion of seizure, illegal detention, (3) and search pre petitioner If District Court.2 of coun ineffective assistance and making appro sents a second motion points not are sel. The first priate allegations, the District Court vacating grounds sentence under a grant its discretion and exercise appellant to not entitle 2255 and do § hearing on motion. Cf. Belton v. States, v. United See White States, U.S.App.D.C. _, United 104 221; 274, 1956, U.S.App.D.C. 98 259 F.2d 811. States, 1950, U.S. 87 Newman v. United Important As App.D.C. F.2d 275. public pol- 184 considerations of allege icy suggest point, compulsive not motion does that a fourth sex of- pos requires possibly fender would who such conduct of counsel and can be sibly assistance. psychiatric constitute benefited States, 104 U.S. should United to a mental See Mitchell v. committed App.D.C._, 259 F.2d 787. for such treatment rather than confined ordinary penal in an institution. How- urges reversal Appellant also ever, person if is in fact a who specific reason court for of the trial with, pres- should have been so dealt present insan counsel failed to that trial ity establishing record falls ent short of it. defense, although motion as a Affirmed. no refer Court he made to the District Judge point the District ence to this BAZELON, Judge (dissent- any such unaware was therefore ing). argues court should He that this claim.1 indigent ignorant is an hear below conduct order layman. He was without counsel when determine duty he filed this motion under carry 2255. He his failed counsel presumably will be without counsel argue in when the defense present and to sanity. motions, any if spe he wishes to point was not Since requires. below, which this court now cifically the motion mentioned “shotgun” say, to see counsel’s record con- dissent as the is not accurate 1. It supported by concerning appel are clusions the record. does, facts “the “schizophrenia” only The word is found lant’s one obscure reference in in It the record. ** appears near end of handwritten memorandum sel’s government say to the court letter was to counsel did What psychiatrist. conclusory should not simply terms “there expected to ferret out what is later sanity definite awas urged as the heart of the case when and counsel defendant himself fails to do so. counsel This did not defense.” this as utilized court of but Johnston, inform v. Price See 334 U.S. opinion; only 266, 291, 1356; S.Ct. 92 68 L.Ed. impose States, U.S.App. trial court Turner searching through F.2d voluminous D.C.

73] agree vious, however, based brethren that a man who vents allegations pres- upon lust the various eleven-month-old correctly motion, ent three months later is found *3 psychiatrists suffering denied District it. But thereafter the Government to be 92(a), Court, appointed schizophrenia, under from its Rule is then sent to pursuing appellant hospital to in assist mentally because he is in- pau- proceed application competent forma his peris; in himself, to to defend sub- insanity of to the record counsel referred stantial defense when ishe ul- timately brought months the case which three showed that to trial. What psychia- .after any, lawyer the crime Government could have had for raising appellant suffer- trists had to be found that defense is revealed nei- ing incompetent schizophrenia ther from the record before us nor the Appointed counsel to charged trial.1 stand files of the District Court available to in Therefore, that failure us. pose whether failure to inter- interpose de- those circumstances to the defense constituted ineffective insanity fense at constituted of the trial assistance of counsel so as to vitiate the conviction cannot be determined ineffective assistance of counsel. without appellant’s

The record shows that of molestation of There are compelling -crime consisted at least two rea- causing ordering inquiry her an eleven-month-old sons for that now: vagina. fur It from It shows is bleed the unrealistic to believe ap- either that crime, that, pellant ther months the could after have been aware of the legal plicable proceedings were instituted to determine authorities when he filed condition; present the mental that motion without the assist- that, being as ance of court ordered mental examinations counsel or in- reported ap result of which it was that formed some of these authorities suffering pellant majority’s psychotic, opinion, from the was he will be able to schizophrenia; apply or preparing that court then understand and papers them in hearing, competency proceeding dered as a result for a which again probably which, 19, 1954, ap will November as- pellant adjudicated incompetent public sistance of counsel. especially placed in the United stand trial and was concerned in defense of in- Lexing Hospital sanity. For, States Public Health brothers would no ton, Kentucky; agree, hospitalization months five doubt and treat- later, hospital acquittal ment which follow certified authorities reason of hearing, and, insanity, the court than up- after another rather greater competent conviction, appellant promise then found that offer .2 rehabilitating compulsive trial stand sex offenders greater protection and therefore for the whether, try to decide We need not community. pro- that could the evidence duced, appellant acquit- concerning would have been When the facts insanity. It seems ob- ted reason of to the phrenia post- be said of counsel’s that the trial had been 1. Whatever poned judge spell during those de several months to the which appellant had file which received in the court’s tails relies, expect judge than a mental rather sel hosxfital. out, here called ferret them Neither nor authorities judge required no attention appellant found had recovered They literally leap spelling out. from his mental illness and would not be hardly eye. too burdensome It dangerous within the foreseeable future. expect aware g., Cf., e. Return to order to show cause corpus shows proceeding material in habeas In re Paul shortly Pendergraph, after the crime Corpus had A. Habeas No. 80- suffering (D.D.C.1958). been found to be schizo- by counsel’s memorandum, reconsidered, sua Court could sponte, appellant’s § disposition of its judicial ad- sound I think 2255 motion. ministration, protec- promoting the community best well as the individual, required such interests re- therefore I would reconsideration. *4 Court case mand the to determine insanity de- deprived insan- If it determined fense. oth- for some ity not raised defense think, then, er to invoke the failure arises whether defense, behavior in connection endangers seriously commu- so which nity, criminal purpose defeats

law. Appellant SEIDNER,

Albert

UNITED STATES States Circuit. Columbia 20, 1958. Oct.

Decided Rehearing Dismissed Petition Nov. pro filed brief se. Oliver S. Messrs. U. Carroll,

Lewis Alfred Hantman and Paulson, Attys., Nathan J. appellee. were on the brief Messrs. McIntyre, and Fred L. Carl W. Belcher appear- also entered ances Douglas, Washington, Mr. John W. Court) (appointed entered appearance as amicus curiae. Prettyman, Bazelon and Bur- Judges.

ger,