Leland A. B. Thomas v. United States
352 F.2d 701
D.C. Cir.
1965
Check Treatment

*2 appeal court denied leave to in forma Terry, Atty., Mr. John A. Asst. U. S. pauperis, denied, and cert. was Acheson, Thomas with whom Messrs. David C. Atty., Q. Nebeker, 371 U.S. U. Frank S. and Asst. Atty., brief, Yet other ap- U. S. on the for collateral attacks on his pellee. convictions suc cessively had been denied until we reach Before WASHINGTON and Danahek, series, instant the fifth in the Judges, and Cir- Senior Bastían, charged and the fourth which had Judge. cuit confessions had been elicited from him through duress and coercion. We have Judge. DANAHER, Circuit not been shown that the Government at opposition. time had filed an Whether the motion of Feb- ruary 12, to 1964 be treated as a motion true, It is as the Government has con- pursuant vacate sentence to 28 U.S.C. tended, § that federal courts are not re- 1651(a) (1965), it, as he or a mo- called quired piecemeal “to tolerate needless pursuant tion for relief to litigation, pro- or to entertain collateral no the record shows that ceedings vex, only purpose whose is to evidentiary hearing had been held in the harass, delay.” v. United Sanders District Court. to Leave 373 U.S. denied, petition there but on filed here L.Ed.2d 148 But grant- prosecute leave to emphasized Court also with ed. respect applica- to second or successive relief, prisoner tions for that the Appellant had been convicted of rob- to be denied an un- bery in Griminal No. 848-54 and on No- appear application less it shall that the vember 1954 had been to sentenced conclusively without “on merit imprisonment years; for 5 to 15 in application, files, basis of the and records 847-54, appellant Criminal No. had been ” ** * of the case alone housebreaking larceny convicted of at discussion and on had December been sen- pages which follows on 16 and imprisonment years tenced to 5for to 15 opinion, pages the Court’s 83 S.Ct. on imprisonment on the first count and to 1077, 1078,provides explication pertinent year count, for on a the second the sen- problem to our here. tences on this conviction to run concur- rently, recognized but both sentences to be served Of course the Court a consecutively application might to the sentence in Crim- “successive” in some 848-54; inal No. in Criminal No. circumstances constitute an abuse of 846-54, following guilty remedy plea as his to “the which Government charging grand larceny, ap- pleading.” second count has the burden of pellant January 7, had been sentenced S.Ct. at 1078. application this fifth in Criminal Nos. 846-54 and Granted previous robbery mo- for in Criminal No. 848-54. for relief the No. that his confession Thomas was convicted in 848-54 tions asserted coerced, robbery imprisoned pre- claim when earlier sentenced to years. adjudicated term to 15 sented had never of 5 Criminal *3 847-54, he was of house- merits. No. convicted breaking and term sentenced to another thought disposi that We earlier years, begin of to 15 to 5 at the termina- by tion controlled of case be of In tion the first sentence.1 Criminal Hodges States, U.S.App. 108 v. United 846-54, pleaded guilty the No. he to 375, (en banc, 1960), 282 858 D.C. F.2d charge grand larceny of and sen- granted, improvidently dismissed as cert. years, tenced to a of to term 3 to 10 235, 139, 368 U.S. 7 2d 82 S.Ct. L.Ed. concurrently robbery run with the sen- Fay (1961), 184 see cited in cases Appellant appeal tence. took no from Noia, 822, 391, 474, v. 372 83 S.Ct. U.S. any of the convictions. (1963) (dissenting opin 9 L.Ed.2d 837 Treating attacking his motion con ion). viction in Criminal No. under satisfied, however, areWe now that serving, he which is now a as motion States, supra, Sanders v. United must sentence, 2255, vacate 28 I U.S.C. § control. the Within standards there laid denying think the trial court erred in down, evidentiary hearing an be must the motion without a con This by afforded on issues the the tendered by Supreme clusion is dictated recent February 12, motion change Court decisions which effected a Reversed. in what was the in this established law jurisdiction. Fay Noia, In v. 372 U.S. 391, 822, WASHINGTON, (1963), Judge (con- 9 L.Ed.2d 837 curring). the Court that held a state conviction on based a coerced confession can agree I result While with the reached collaterally attacked in Federal court. by majority, impor the of the because Compare Hodges States, v. United 108 my tance of the I shall' case set forth view U.S.App.D.C. 375, 377, 858, 282 F.2d 860 Appel of the considerations involved. (1960),2 improvidently cert. dismissed as lant filed in the District a Court “motion granted, 139, 235, 368 82 7 U.S. S.Ct. discharge to vacate sentence and defend L.Ed.2d Since Section 2255 purported upon ant” in reliance corpus,” is “as broad as habeas Sanders 1651(a), All Writs The Statute. States, v. United U.S. S.Ct. by was denied ^motion (1963), 10 L.Ed.2d 148 it is clear evidentiary hearing, without an and we a coerced confession used in con a granted appeal pau leave to in forma viction in a Federal court is also the citing peris, Fay Noia, v. 372 U.S. proper subject of collateral attack under (1963), Section 2255. Sanders v. United U.S. Fay (1963). App S.Ct. v. L.Ed.2d 148 Noia also states that failure to original motion attacks conviction not three convictions does ellant’s ground long they procured bar collateral attack so as the by the use of coerced available the time the a confession. collateral 1954, appellant applicant If and a attack made. co-defendant were habeas “understandingly housebreaking larceny knowingly indicted for fore- one-year granted hearing 1. A sentence on bad on his a second count allegation (petit larceny) coercion, imposed, also of improvidently granted. to run certiorari concurrently dismissed sentence hearing such count. No was afforded to Thom- first as. granted by 2. Certiorari was appeared Hodges but when it seeking (en banc, 1959). privilege v. to vindicate F.2d 921 Sanders went the courts,” clearly supra, his federal claims in the state United states justify may deny prior him relief. 2255 motions do not the Federal court Section hearing, Fay Noia, supra, denial of a motion without long Compare so as the current motion sets forth S.Ct. at 849. States, Smith v. ground U.S.App.D.C. previously 192 a not considered on 187 F.2d denied, 71 the merits. cert. 95 L.Ed. 1358 But the there stated: Court sup Supreme Court makes clear that a rested denial must have “The scrutinized; posed closely waiver is to be adjudication on an of the merits must and the court’s decision on waiver ground presented in the subse- be made “after the federal' court quent application. Hobbs v. See itself, by holding satisfied *4 (C.A.4th Pepersack, 301 F.2d 875 bearing means, some other upon of the facts 1962). 3 that if fac- Cir. This means applicant’s the default.” prior in the tual issues were raised present at 83 at 849. On the S.Ct. application, it not denied on and was appellant’s record original failure to his and records the basis that the files justify conviction does not the issues, conclusively resolved these an appellant’s mo District Court’s denial of hearing evidentiary held.” 373 hearing. tion without a 83 at 1077. U.S. S.Ct. It is true that the District Court would Appellant has raised the coerced confes- justified denying have been in the motion sion issue in the three motions immedi- ately preceding hearing without a if “the motion and the present one. But the conclusively files and records of the case hearing any no held on prisoner show that the entitled to no is Clearly, issues were them. factual relief.” 28 2255. But is that allegations by appellant’s , raised orig- transcript not this case. of the The judges coerced The consid- confession. apparently prepared, inal trial not ering gave his motions no reasons and there is no in the record evidence argued for their denials. It negating allegations appellant’s that his prior that that we should assume the confession was coerced.4 motions the records were denied because remand, original appellant’s On if fail- conclusively appel- showed files that relief, ure to is not held to bar lant was not entitled to ever, relief. How- have the tran- can the even if we assume that this was script original prepared. of the If trial ground previous mo- denial of the the supplemented the record as thus does not tions, hearing* Sanders indicates that a conclusively appellant’s show that mo- granted present should have been on the merit, evidentiary hearing tion lacks an hearing granted if motion. must be it A whether not the confession was justice.” For would ends of serve “the necessary. coerced would be Townsend example, applicant is to a new entitled Sain, v. U.S. hearings prior if he shows that “full 16- were not and fair.” The fact that this is fifth S.Ct. at The record 1077-1078. analogous justify poses an sit- Section 2255 motion does not its before the court conclusively it denial without v. uation: shows that the See Smith U.S.App.D.C. 169, motions could not have been sum- peti comity in- Even if the there no interest of court finds since is knowingly appeal, tioner forewent an volved. grant court can relief in the interest justice. Gidley, argue not Gladden v. The Government does Cf. (9th 1964). appel- show F.2d 575 Where the records the case Cir. argu involved, contentions are untrue. Federal conviction is lant’s against granting weaker, ment relief is marily offenses, help denied on the of the files trial' of basis two other Hence, distinctly pos- of of and records. the interest It confessions. given justice, appellant played must be a hear- sible that the confession a con- ing trolling present part plead motion.5 in his decision to guilty. proves If that to be the argument appellant The possible it is that that conviction should remedy abused the motion is a matter aside, be set too.6 Sanders v. United pleaded respondent, which must be 373 U.S. at 83 S.Ct. at 1080. 373 U.S. at 10-11, 1074-1075, 83 S.Ct. at and, presumably, him, proved by 373 U.S. at Court, 83 S.Ct. at See Term, Harv.L.Rev. apparently This was not

pleaded below. Although is not now

serving under the conviction in begin he will service of that sentence POWELL, Appellant, Marshall M. upon the termination of the sentence in 848-54. The confessions used in both America, UNITED STATES of alleged cases are to have arisen from Appellee. interrogation. *5 the same course of coercive Hence, they No. 18315. disposed could be of in a single hearing without additional effort. Appeals United States Court of If the court finds that the confessions Circuit. District Columbia coerced, prop- both sentences would Argued Feb. 1965. erly be set aside. Aug. Decided The situation in 846-54 is somewhat appellant pleaded guilty different: case, imposed and the sentence already appellant been served. If shows why some reason the matter has not mooted, he could attack this sen by way tence of coram nobis. United Morgan, States v. (1954); 98 L.Ed. 248 Thomas v. States, U.S.App.D.C. 234, 27 (1959). Appellant F.2d 500 did not al lege in his guilty motion plea special made under duress. The

circumstances in the instant how ever, judge warrant in con

cluding guilty plea that the was induced alleged Ap coerced confession.

pellant just been convicted after may Supreme It also Term, be observed that in Sanders Harv.L. (1963). motion had been denied with- 148-49 Rev. hearing, part out a because the rec- U.S.App. ords and files showed that no relief Thomas v. United Nonetheless, Compare warranted. D.C. 271 F.2d 500 Court U.S.App. reconsidered the issue and stated Newman v. United records and files could not have D.C. nied, 184 F.2d 275 cert. de shown was not entitled L. any relief. The case was remanded to the Ed. 665 District Court for a See The