Edward B. Bishop v. United States

PRETTYMAN, Bеfore BAZELON and Judges. DANAIIER, Circuit PRETTYMAN, Judge. Circuit This is from a denial filed motion under Section Title 28, of the United States Code. by action of counsel is demonstrated Appellant 1938—six- was convicted rather than inference. ago first murder teen —of long numerous, and and the all death. witnesses degree sentenced and was inquisition the were cross- Government witnesses 1940, Thereafter, in prayers prepared examined. Nine insane held, to be found and he was was by presented and Hospital. to the trial court de- In Elizabeths and sent to St. vigor- fense counsel. The defense was 1952, commuted March, President the stages.. judg- ously pressed at all “imprisonment for The. to the death sеntence life, appealed ment of conviction was court, this to upon of his the date commence to by 1952, in an October, and exhaustive the In commutation.” (then Hospital the late Chief Justice Vinson As- Superintendent of Elizabeths St. of court), sociate Justice concurred Bishop had recovered certified that by in mind, then Chief Justice Groner and and of sound and was then reason discharged Edgerton, Associate Justice was af- the in treatment him from find no in firmed.1 We merit the conten- thereupon Hospital. returned to He was incompetent. tion that counsel were penitentiary the commuted the to serve sentence. Bishoр 2. While makes some vacate the to present motion Upon insanity the reference to at the time the conviction, appellant raises judgment crime, commission of the which would (1) that counsel points: principal indictment, be three a defense to the this is was the trial him at appointed to defend not the burden of the motion to vacate. the defense incompetent; (2) that ;per insanity se issue as a defense and trial insanity at the raised presentable was appealable and trial mind unsound (Bishop) was respect it, he if error has been made in (3) trial; and the time at and a motion to vacate under Section unlawfully certi- has Prisons Bureau of 2255 cannot be used as a substitute for eligibility parole alleged of his appeal.2 fied the date an ty Therefore an insani- date of being fifteen at the time the commission of a date of of from instead commutation crime cannot be used as basis for a original sentence. motion under Section 2255.3 Bishop’s Appellant that his contention contends chief 1. ad- condition is that court-appointed had been his mental counsel competent only before the time six months he to the bar was mitted days question trial, criminal is whether at the had two trial. The had mentally competent prior trial and еxperience trial he was to'the time of trial against represent incompetent proceedings to understand therefore lawyer capital properly case. The assist his own in a him accused among presently against a division There is whom attack defense. attorney question by can joined whether that another courts three others a motion under Section trial raised conduct be competence jurisdiction appeal. The notice 2255.4 App. 1939, States, 606; Johnston, Bishop 1939, 71 102 F.2d Hall v. v. United 132, 820; Whitney 1936, Cir., F.2d 107 86 F.2d v. D.C. 9 Cir., 970; 1933, Zerbst, 62 F.2d Fen 10 D.C.Cir., States, 1950, v. United Smith Aderhold, Cir., 1930, 44 5 F.2d 787. ton v. 192, 80, U.S.App.D.C. cer 187 F.2d 88 denied, 1951, 927, 71 S. tiorari States, Cir., 1949, 10 178 4. Hahn v. United L.Ed. 1358. Ct. 95 Ashley 11; Pescor, Cir., 1945, v. 8 F.2d 318; Hunter, States, 10 Cir., McMahan v. F.2d 10 147 Hahn v. denied, Cir., 1945, 150 McDonald, 11; F.2d certiorari v. 5 Whelchel F.2d 178 260; Byrd Pescor, 66 Cir., S.Ct. U.S. 176 F.2d v. 475; Swope, Cir., Cir., Forthoffer v. 163 F.2d certiorari L.Ed. Pescor, denied, 1948, McIntosh Cir., Lloyd, Rolfe v. (c) Allen.56It The facts that the United States Sanders was answered precaution Attorney com taken had that case that was established psychiatrist Bishop be- an issue have examine petency raised as trial be corpus. doctor, Ev- fore the trial a Dr. of habeas petition for a writ on a writing, ans, detailed made a then determine whether turn We concluding: delu- “This man has no Bishop Court that District sions, anything that hallucinations nor sup- competent to stand suggestive would of a mental disor- ported or was evidence substantial der.”7 clearly before The court had erroneous. (d) following it for consideration: On chain facts: of October the aforementioned competen- (a) presumption A report psychiatrist of the was made. Bishop cy had time of the trial. the later, 15th, About a month November incompetent. found theretofore been Bishop was sentenced death a to after trial, Bishop’s testimony as (b) at the jury. year by conviction A later the by report of bill of the it in the shown by conviction and sentence were affirmed prepared exceptions detail in elaborate psy- this court. Six weeks thereafter a length, by his counsel.6 He testified at Bishop chiatrist certified that then was detail, coherently in and so far the “suffering insanity”. jury from A record shows. he had He testified that impaneled, inquisition had, Bishop eight Navy or been in the for six months adjudged insane, and the execution of and had worked W.P.A. for about suspended the death sentence “until eighteen months. He met the overwhelm sanity.” such time as he is restored to eyewitnesses ing to evidence of the the May 31, That was on 1940. Almost by the murder adroit defense drunken years twelve thereafter, January 28, on sturdily long, He a ness. withstood Judge Adkins, District Jesse C. exami severe cross examination. Under retired, then who had been the trial by nation vorce, annulment, the court he talked about di Bishop’s wise, case and awas careful phases'of and other his experienced judge, and wrote the Pardon difficulties, explaining matrimonial that Attorney Department of Justice: he had discovered wife had his another opinion “From the of Dr. Winfred (Bishop) husband he when married her Superintendent Overholser, of Saint and that he did not know what to do Hospital Elizabeths and legal Dr. Bernard the about tremely situation. He ex Cruvant, assistant, A. his under explanation skillful his of his supervision petitioner, whose possession Ed- of the hammer time of at the Bishop, ward C. has been for some Bishop’s the murder. The character of years, probable seems it testimony the own at the was convinc petitioner ing sanity then-capacity will recover his evidence his to long undergo stands, death as the sentence trial and assist in his own defense. and therefore that the death sen- App.D.C. 100 F.2d 717. 7. That Evans’s Dr. before the part court as the files record specifically provides 6. Section 2255 the criminal is established the files and out ease record of the criminal (1) hearing facts that counsel at (under which the motion Sec. on the motion Court flat- District 2255) arises be consulted ly stated, contradiction, without that the judge hearing motion, and thus those part was in the doсument the court among record and part record files and of the are file, (2) copy of it is proceeding record in on a motion papers certified this court Repeated ref- vacate under Section 2255. the District Clerk Court as transcript proceed- erences having pro- been before that court in this us files before make clear that ceeding. be- and record the criminal case were judge hearing fore the motion examined him. Overholser, as fol- which concludes out. Dr. carried never be will

tence lows: Therefore, let that cruel to it seems foregoing, “In I recommend view stand. sentence bаckground patient to life be commuted historical the sentence savage family, imprisonment or a term and his his almost taking present life greater his conduct and means used in than not expectancy.” of his in con- the life second wife while tradistinction his behavior days thereafter, sixty March About 24, during my under care and treatment commuted President ‍‌‌‌​‌​​​​​‌‌​​‌‌‌​‌​​​​‌‌​‌‌​‌‌​‌​​​​​​​‌‌‌‌​‌‌​‍year period, in addition the twelve imprisonment. to life death sentence long bring period required months, Dr. on October seven recovery, is, about fore, my full there- Bishop “has certified Overholser professional considered he now and that reason recovered Bishop that Edward B. of events mind”. This chain of sound suffering from mental disorder of Bishop’s dif- to belief that leads ficulty degree such and nature as render prison might have been well legally him he the insane when took by psychosis the shadow caused July 23, life of his on second wife incompe- to indicate sentence. It fails 1938.” trial. tence at time provides Section 2255 that (e) as to com- issue The fact no upon a motion under it the court must petence raised of trial was the time findings make of fact and conclusions although years, than fifteen for more respect thereto, of law with unless the lawyers Bishop’s trial record shows motion, conclusively files and record diligent behalf efforts made prisoner show the So, entitled no is to relief. appeal. throughout upon the trial and hearing a when court acts after a upon proof (f) burden The upon upon a Section 2255 motion based Bishop, It is well established the movant. incompetency, specific make a must a attack collateral movant finding competency incompetency. or especially judgment, affirmed upon one a In the case at bar the court such burden.8 upon appeal, a severe undertakes finding. finding finding a That a magnified when is And this burden fact; respect the conclusion of law with fifteen come until does nоt attack thereto was that to the motion vacate event. after the should The be denied. before us finding is whether having we will set aside the that, orig- (g) fact competency. sentence, court, capital inally a been judgment from the governs The rule which us points conviction, considered Supreme by the Court in the stated by appellant examined the raised but Gypsum case.10 The courts have Co. sug- and made for error whole record gestion scope recognized difference between the a part incompetence on the of an reviewing court’s examination undergo to trial. the accused findings in which the crеdibili review ty involved, scope hand, contrary is and the of witnesses (h) and other theOn findings entirely which rest foregoing, in review of 1954 affidavit of to Zerbst, 1938, Hall v. 60 S.Ct. v. Johnson Cir., 1939, Johnston, F.2d 82 L.Ed. 1461. citation establish that it needs no And U.S.C., g., re Title Section E. jury sanity an in a case must issue finding” quires “make a the court jury. submitted incompetency. to mental with Gypsum Cir., 1945, Ashley Pescor, v. United States see And Co., Hudspeth, Frame v. 358-359, re grounds, on other versed findings. material; upon documentary Kel- but Such the situation ley Everglades every may appellate neither court re- But District.14 way unless firm of fact—all verse it has a conviction from atomic nuclei findings.11 galaxies clear error in are not We astronomical ultimаte —is finding court, by underlying propositions even reverse a a trial some others, documentary evidence, every if we unless is underlain so fact finding clearly practical conclude that er- other in this facts. The law is and, respect, supporting on roneous Gypsum the entire In the evidence. while it looks findings many Co. case the Court said: ultimate find- sorts of findings ings, many it also deals findings judicial review of “Since arising directly from evidence with- of trial stat courts does have the interposition separate sup- out the utory or constitutional limitations findings. porting such a This is case. judicial review competency, issue was con- agencies by jury, or administrative clusion awas direct this Court reverse evidence as the file disclosed and the ‘clearly fact a trial court where record. * * * erroneous.’ A ‘clearly although erroneous’ when Looking evidentiary at the ma it, support there is evidence to terial which inwas the record before reviewing court on the evi entire Court, briefly District and which we have dence is left with the definite and described, we think there substantial firm conviction that a mistake has evidence from which the District Court 12 been committed.” find, could find, Bishop itas did that was competent at the time of trial.15 Cer judge supposed A trial is not tainly we have no “definite firm to recitе the evidence which he conviction a that mistake has been committed.” finding,13 validity bases a and the of his 16 depend upon does not what an appellate Appellant court thinks he had in mind at 8. contends that moment; presumed he is power to have had had President to to attach record in whole mind. There are commutation order the condition that findings many begin the life cases ultimate sentence must run to date supported by underlying practical intermediate point commutation. The City 11. See discussion and cases cited in sub Note nom. of Salamanca v. United proposed 52, States, 1942, 694, 1293, to amendment of Buies Buie 316 U.S. 62 S.Ct. Procedure, prepared by 1764; Lighterage 86 Civil the Ad L.Ed. Petterson & visory Towing Corp. Committee on Buies for Civil Pro v. New York Central R. May, cedure, Engstrom Co., Cir., 1942, And 1954. see 2 126 F.2d 992. Cir., Wiley, 1951, 684; 9 v. 191 F.2d 1943, 415, 1141, 14. 319 U.S. 63 S.Ct. 87 Frank Adam Electric Co. v. Patent Colt’s L.Ed. 1485. Mfg. Co., Cir., 1945, Arms F ire 8 497; 148 F.2d Heim v. Universal Pic 15. See United States v. National Associa Co., Cir., 1946, 480, ‍‌‌‌​‌​​​​​‌‌​​‌‌‌​‌​​​​‌‌​‌‌​‌‌​‌​​​​​​​‌‌‌‌​‌‌​‍tures 488, 2 154 F.2d Boards, 1950, tion of Real Estate 339 (concurring opinion Judge 491 485, 711, U.S. 70 94 L.Ed. Werbe, Clark); Cir., 1952, Holt 8 v. 198 Oregon Soc., 1952, United States v. Med. 910, 916-917; Coal, F.2d Tennessee Iron 690, 72 S.Ct. 123, Etc., & v. Muscoda Local R. Co. No. States, 1954, McAllister v. United 348 U. Cir., 176, 180-181, 137 F.2d af S. 75 S.Ct. 99 L.Ed. —. firmed, 1944, 64 S.Ct. 9-19; Ry. Signal present Central The Co. case at bar v. does not Cir., 1952, Massey Longden, problem Moore, F.2d 317- 99 L.Ed.—. Here counsel, hearing the movant had a Supra page 395, note motion, had on the and a S.Ct. 525. made. Forness, States v. 928, 942-943, certiorari denied competency trial be- to stand person under is that contention Allen, cause, as said in eligible we Sanders parole at the is life sentence lacking any person such conviction Bishop’s life years. If end of fifteen competency immutable “violates certain begun the time run at sentence had justice principles eligi- which inhere in original he is sentence government.” very Section idea of free present time. parole at the ble for 2255 directs that “Unless the motion pardon power is settled that conclu- the files and records of the case subject judicial power executive sively prisoner is entitled show that the clear seem would Moreover it review.17 relief, to no the court shall cause notice the death power to commute thereof the United to be served necessarily include sentence would hearing attorney, grant prompt States conditions. power reasonable attach thereon, and make determine issues District Court order of the findings law and conclusions of fact Affirmed. “The issue was thereto.” says, competency,” as this court Judge (dissent- BAZELON, Circuit holds court 587. This court that the trial ing). The stat- need determine issue. by hold affirmance court reaches says ute issue and it must determine the ing determination an ultimate findings make of fact. competency to stand of mental the issue case, present In the served notice was “directly evidence separate trial arises Attorney, upon the United a hear- interposition of without ing held at which no evidence findings.”1 this hold supporting I think findings introduced, and the court made contrary decisions erroneous Plainly, of fact and conclusions of law. The elimination circuits.2 in other conclusively ap- appear it did not requirement in this 2255’s pellant was entitled no relief. Accord- seriously endangers the administra ingly, the trial made two The of com generis. statute. issue tion bearing upon aрpellant’s compe- mental

.peteney sui stand trial is not tency purporting to stand trial: one indistinguishable in this It is support determination, the ultimate set under § reviewable (cid:127)from other issues law, appel- forth conclusion a example, as, whether for 2255— mind”;6 lant was of “sound the other competently prisoner counsel.3 waived contrary findings thereto. Since both solely 2255 to are drawn under evi- § Jurisdiction exists written dence, judge] on the issue are able as collateral attack “we trial entertain a [the Johnston, 1944, Cir., Yelvington & Pardon 3. See Michener v. 9 v. Presidential D.C.Cir., 1954, 171, corpus Attorneys, 141 F.2d where in a habeas Parole 642; appropriate 2, Aрp.D.C. Stroud v. case the court 211 remanded F.2d findings 171, question Johnston, cer on the F.2d of waiver coun 139 9 although 796, sel, 1944, denied, 64 S. the trial court had stated U.S. 321 tiorari as a conclusion of law that there had been 846, Bozel v. United Ct. States, 153, 1943, a waiver. Cir., certio 139 F.2d 6 800, 1944, denied, U.S. 321 rari App.D.C. 307, 310, 69 1087; Lupo Zerbst, 5 88 717, 720. denied, Cir., certiorari F.2d 92 L. 82 emphasis sup (1952), 5. 28 § U.S.C. plied. Ed. opinion, Majority F.2d 587. of Law No. 3: “Because 6. Conclusion prisoner Cir., States, mind he was of sound was not v. United Michener subjected jeopardy to the hazards States v. and United F.2d proc- jury due in violation of the Cook, Cir., hold fifth amendment clause ess ing under 28 U.S.C. that determinations supported by federal constitution.” be must fact. give credibility.” our he omitted two. Could not Hence to determine significance holiday. any He could is of these consideration give day year weighted the week and but not trial court’s assessment [presumably viewed, month the the the time of credibility. So I think of only finding clearly name, er- the He wrote his examination]. supporting is legible.” very which was No mention is conclude that I roneous. therefore any possibility patient any support made of that the absence of feigning ignorance malingering. determination, ultimate trial court’s report concludes follows: and remanded be reversed must proceedings. further delusions, “This man has no hallu- cinations, anything nor that would I. suggеstive of a mental disorder. finding, which the trial He however of rather low intelli- solely for his ultimate determina- relied gence. very He has been shiftless clearly tion, it is erroneous because always very poor and has made a reading an erroneous based adjustment sup- economic when not psychia- Evans, report of Dr. a written family. ervised suggestion his There is a trist : patient that this is some- Finding men- “A of Fact No. 3: feeble-minded, probably what prisoner was tal examination high grade group. moron I am hav- D., Evans, A. B. M. made Dr. psychometric examination approximately two October in order to determine his exact trial, which reflects weеks before age. It is felt that this is prisoner of low his mentality degree not of sufficient responsibility.” affect but could discern suggest symptoms that would “suggestion [appel- competent mental disorder and was feeble-minded,” lant was] somewhat Dr. to stand trial.”8 Evans indicated that a final determina- Dr. Evans’ does not deal with the appellant’s completion tion would competency psy- await states, alia, ap- stand trial. inter Therefore, chometric examination. pellant was taken out of school appellant’s statement that feeble-minded- age of * * * 14 or 15when he was in the fourth ness was “felt not [to be] grade, stayed grade that he in one four degree responsi- sufficient to affect his years, or five that his mother and sister bility” tentative, pending the out- poison took, died they from which and come of examination. Since the out- that he did not believe he killed wife. appear record, come does not examples patient’s It cites of the answers impression Dr. Evans’ remained tenta- simple questions: patient] “He [the tive, his statement was entitled to little plus plus said equals three seven nine weight present inquiry. in or no naming year the months to the then addressed United States At- Land, 1950, U.S.App.D.C. 7. Dollar v. stamped torney is not as filed with 214, 218, 245, 249, quoting from filing court, nor is its noted on the Higgins, sheet Cir., 1950, Orvis v. 180 F. entries in thе case. of docket only bears 2d 539. Sec United States v. United stamp indicating receipt by its Gypsum Co., 1948, States 395, Attorney’s togeth- olliee L.Ed. 746. that office's file number. er with Since 2255 “the Under filos and records of “part file,” not a of the Court it case” consulted the court filing prior motion under § determining in whether en- movant is 2255, and was not admitted in evidence report, although titled This to relief. in- applicable safeguards, under thereafter not, appeal, cluded in the record judge the trial represented consideration its as Government counsel to the “part court, a trial error. the Oourt file.” report, This dated October nothing petency imрortant, in trial it in- there is stand since was More merely to indicate tended as a for institution or in the record basis lunacy inquisition by “responsibili- pur- and for that what Dr. Evans meant ty.” pose commonly pertinent. refers to men- such matters are not That term Instead, offense, merely states, pertinent it of the tal condition at the time in part, “Respon- competency that the trial. affiant made an examina- stand “gave only sibility” pertinent Bishop tion and the said Edward B. in that sense is psychological insanity test, upon plea trial a a a result at the charged; this and the examination and test is of [affiant] defense to the crime opinion jurisdiction Bishop ‍‌‌‌​‌​​​​​‌‌​​‌‌‌​‌​​​​‌‌​‌‌​‌‌​‌​​​​​​​‌‌‌‌​‌‌​‍suffering applicable that said in this is tests then gross wrong” “right deficiency, from mental and “irre- were the that he eight mentality year impulse” Competency has the of an sistible tests. old child, depends, depended, in addition to his stand trial and still feeble- considerations; suffering insanity upon very mindedness he different from * * ability as well While it understand his is not made the accused to perfectly clear whether in situation and assist his defense.9 determina- age upon tion of exact mental was based the trial other psychometric sort examination relating appellant’s issue of to the report contemplated, which Dr. Evans’ supports competenсy to stand strongly the context indicates that contrary an ultimate determination was. judge reached: the one the trial The second affidavit was made Dr. Finding of Fact 5: “There No. Overholser, Superintendent Winfred evidence, upon expert opin- based Hospital, St. appel- Elizabeths to which prisoner ion that the was of unsound upon adjudication lant was committed mind at the time that the offense insanity May Although committed, approxi- was mately and for February 16, 1954, affidavit is dated it is twelve after his con- expert based appellant close observation of viction.” twelve-year period, for a com- mencing This is drawn from the affidavits with his commitment psychiatrists. first, by Hospital of two until his release therefrom to Klein, Dr. jail Elmer is dated December District the affidavit, October 1952. This year 1939—a little more than a after record, like all the others in the provided opinion regarding appellant’s trial —and the basis states lunacy competency ordered the the District Court to stand trial when he was adjudi- inquisition which resulted tried and sentenced. But it concludes insanity May 1940.10 cation of This affiant, appel- any suffering affidavit does not contain conclusions lant “was from mental disorder responsibility respecting degree or criminal com- of such and nature as to render Hunter, comprehend In Brewer his own condition with refer- Appeals, pending against in the Court of erence to the accusation holding capable rationally the evidence in that adduced him and is of conduct- corpus proceeding adequately ing acknowledged es- habeas his defense.” The court appellant mentally case, supra, that tablished error its Brewer ob- tried, competent serving right wrong when observed that the that the test capable applicable “although abstractly correct, ap- was whether “he is test had no right wrong distinguishing plication between of to the before in us respect with case.” time and to the act that the Subsequently, however, committed.” 10. This affidavit, unlike the of Dr. Hunter, Cir., Moss Evans, light upon qualifica- throws the denied, certiorari examining of tions the doctor. It states physician specializing the affiant “a that applicable “that court noted same mental diseases and that he is a mem- in these circumstances .is whether test of the District of ber Columbia Commis- capacity has the mental an accused Mental Health. sion on supported legally of the the time tried —is him insane” at of fact. It avoids such a decision treat- crime. the conclusionas a of fact and report, Evans’ which While Dr. special one such a character that it single examination, upon dis based supported directly by any be evi- hallucinations, delusions, nor closed “no interposi- dence in the record without the suggestive anything of a mental dis findings. supporting tion of requires findings But § twelve-year order,” hos Dr. Overholser’s of fact with disclosed, pital study alia, inter that exception. “the issues.” It makes no appellant from had “convulsive seizures reasoning And this court offers neither gradually early childhood had [which] * * * authority making exception nor an frequency lessened in [and] competence. issue mental Based during supplanted more recent view, the court then concludes appeared years petit what mal supporting findings that would amount to possibly seizures and visual hallucina no more than a recitation of the evidence. progress beyond tions. He could not judge”, says, “A trial supposed it “is not grade year school, second and had recite the evidence which he always regarded as a been defective. * * finding.”12 bases a But when the court During early part of his support refers evidence for of the Hospital, residence agnosed he was di below, ultimate determination made it psychosis as a case of with men only I*********11 not recites the evidence but draws deficiency.” tal fresh inferences therefrom. These in- I do not understand how can be ferences, course, original support- are assumed that the “feeble-mindedness ing findings of fact. insanity,” diag- which Dr. Klein [and] referring Thus, transcript year nosed about a after trial and which proceedings in 1938 and the bill shortly was confirmed thereafter exceptions filed on the from diagnosis “psychosis St. Elizabeths conviction, the court declares that deficiency,” significantly Bishop’s testimony own “character of different at the time trial. convincing the trial evidence of his II. undergo then-capacity to trial and to already pointed out, I As have the trial assist in his own defense.”13 Not recognized judge from, that because it did an inference is this rather than a conclusively appear of, evidence, from “the motion and mere recital but these * * * and records of the files the case records were before the trial court. [appellant They entitled to no was] relief were Archives at the time * * hearing.14 required by he was § 2255 to The court also refers letter, make of fact and conclusions of to a from the district who Nevertheless, presided pardon law. this court refuses at the trial to the attor- ney, decide whether his conclusion of was written law— about fourteen appellant years ofwas “sound mind” after when the trial and in which thе Concerning appellant’s recovery suggested 1 1. after within normal limits. It was years hospitalization, discrepancy twelve between af the defec- hospital adjustment fidavit states: test tive achievement at the time of his performance period over a admission and normal results in 1948 increasing strong component doubt led to as to the indicated a exist functional ence of actual irreversible in his mental mental defi illness. spite ciency, of the fact intel Majority opinion, 223 F.2d 587. during ligence early part tests of his hospitalization placed him in the mental Majority opinion, 13. 223 F.2d 585. category. On account of defective the in creasing being They about doubt а true de 14. left Archives for the first time fective, May requested was by he re-examined in in December 1954 when long and it found that at that time this court argued. after the had been performance functional level of separately, commutation of the which recommends are sufficient prob- “it seems indicate the factual for the sentence basis because death [Bishop] not recover his ultimate that will conclusion.”17 able long sanity as as the death sentence States, In Michener v. United * * * therefore, stands, and it seems Eighth following Circuit -ascribed the From stand.” cruel to let that sentence purposes requirement 2255’s § months fact that some this lеtter and the findings: “(1) appellate to enable the Bishop was declared after it was written grounds upon court to -determine the by Hospital authori- sane ties, St. Elizabeths which the trial court reached its deci- inference “that this court draws the sion; par- (2) to enable the defeated might difficulty Bishop’s well have ty pre- to determine whether the case prison by psychosis caused been a question worthy sents a of considera- of the death sentence” and “fails shadow by the-appellate court; (3) tion incompetence to indicate at time spare appellate necessity court the trial.” searching supрly the record in order to any judge doubt that There is serious findings of fact.” It is evident that appellate draw such -—trial or —should purposes of these none served 'evidence, without such inferences from appellant naked conclusion .opin- expert psychiatric assistance of sound mind when tried. if inferences can be But even such ion. findings requiring Another reason for assistance, it seems without such drawn suggested by our decision here is they not be drawn me should clear to Quinn There States. we were v. United judges. by appellate instance in the first- urged a criminal conviction on to affirm Everglades Drainage Kelley Dis- In trict, Although ground not considered below. Supreme. Court held a bank- bearing ground upon that the evidence all findings ruptcy made court had not appeal, record on we included in the 52(a), required Federal Rule fact as original finding an declined to make listing After Rules of Civil Procedure.16 appropriate being fact, important reason might which have been facts “ * * * missing but, facts considered like the one 0f ^he substantial rights here, to in the “nowhere referred a criminal defendant accorded * * findings opinion in the federal courts is the or below statute right appeal. Court-said: Were court “ * * * adequate on a affirm the conviction be that below, the defendаnt considered is in these matters evidence as to deprived of that would right, effect be present we do record. On that finding, for our in the first pass, the function of for it is not instance, issue, main would the record and court to search subject sup- on the to review analyze be grant in order to the evidence Supreme findings ply of certiorari the trial court which * * * hold to make. We Court.”19 failed * * * findings, must be this court makes that there they are, least, or Yet can either in the court’s doubtful. stated Majority opinion, “but ultimate conclu- 223 F.2d 586. trict Court were 15. dispense with the neces- and did not sions 16. sity formulating properly under- Michener v. United L.Ed. 1485. lying findings fact.” The Court of- 422, 424, States, undеrlying attempt to resolve these require- compared the court but remanded case for factual issues 52(a) with that of 2255. of Rule ment appropriate fact and conclu- 421-422, page 63 S.Ct. a of law. sions Circuit, page Interstate also page F.2d at States, 1938, Inc., v. United U.S.App.D.C. 768, 769, granted, Supreme certiorari held Court where S.Ct. 861. of the Dis- in the decree statements grant “only on of certiorari reviewed ‍‌‌‌​‌​​​​​‌‌​​‌‌‌​‌​​​​‌‌​‌‌​‌‌​‌​​​​​​​‌‌‌‌​‌‌​‍Supreme Patently, Court.” right appeal

diminishes appeals specifically con-

court by 2255.20

ferred

I would reverse remand required directions make because, I the statute. And have show, presently

tried to the evidence inadequate record an for basis

rational determination on issue appellant’s competency trial, to stand I parties

would also direct that given opportunity present addi- if, example,

tional And evidence. appel-

trial court were to determine that eight-year-old mentality,

lant had require could then submission sort

of evidence essential to a factual determi-

nation whether cir- cumstance, alone or in combination with others, ‍‌‌‌​‌​​​​​‌‌​​‌‌‌​‌​​​​‌‌​‌‌​‌‌​‌​​​​​​​‌‌‌‌​‌‌​‍deprived appellant capacity trial, considering, course,

to stand specific charges against nature of the

him. Livingston POMEROY,

Robert Executor, Eagan Pomeroy, Estate Elizabeth Appellant, RAILROAD,

PENNSYLVANIA a cor- poration, Appellee.

No. 12104. Appeals, States Court of District of Columbia Circuit.

Argued Nov.

Decided Feb. provides: Sayre, 1895, Section 2255 Johnson appeal may 115-116, “An be taken to the court 15 S.Ct. L.Ed. appeals from Gillies, the order entered on the Von Moltke v. judgment ap- motion as from a final cf. United plication corpus.” Mulligan, 1935, a writ of habeas ex rel. Kassin v. The district court’s factual determina- tions are reviewable on LEd. 1501. corpus denial of g., habeas relief. See e.

Case Details

Case Name: Edward B. Bishop v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 18, 1955

Citation: 223 F.2d 582

Docket Number: 12208

Court Abbreviation: D.C. Cir.