UNITED STATES of America, Appellee, v. Clarence Duke McGANN, Appellant.
No. 282, Docket 24065.
United States Court of Appeals Second Circuit.
Submitted March 20, 1957. Decided June 14, 1957.
245 F.2d 670
Cases cited to us by Hintz‘s counsel are either inapposite or distinguishable. For example, Newport News Co. v. Schauffler, 1938, 303 U.S. 54, 58 S.Ct. 466, 82 L.Ed. 646, followed Bethlehem Shipbuilding Corp. v. Meyers, 1938, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 deciding a question in the administrative law field involving exhaustion of remedies. Indeed Mr. Justice Brandeis, who incidentally authored both opinions, observed in Newport News [303 U.S. 54, 58 S. Ct. 468]: “To the extent that relief was sought to prevent the injury resulting from a hearing, the cause appears to be moot. But the cause cannot be disposed of as moot, as the trial examiner has not yet made his report to the Board; the Board has made no decision; and thus there is a possibility of future proceedings.” It must be remembered that the Newport News case arose through a declaratory judgment proceeding attacking the constitutionality of statutory provisions and jurisdiction of the National Labor Relations Board while a complaint against the employer, Newport News, was pending before the administrative agency. Public utility regulation involving reparations and rate-making take South Pacific Co. v. Interstate Commerce Commission, 1911, 219 U.S. 433, 31 S. Ct. 288, 55 L.Ed. 283 well out of the zone of relevancy here. Demonstrating the inapplicability of each authority relied upon for Hintz‘s argument against mootness is unnecessary. The validity of the writ might not be involved in a subsequent proceeding involving Hintz and the government.
We simply hold that this appeal pivots on a moot point, prematurely raised by a party having dubious status. For all of these reasons we reverse the order appealed and vacate the judgment entered, October 19, 1956, below denying Hintz‘s motion to quash the writ of habeas corpus ad testificandum and remand this cause to the district court with directions to dismiss Hintz‘s motion without prejudice. United States v. Munsingwear, 1950, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36. By thus disposing of this appeal we expressly intend to preclude any claim that the order of October 19, 1956 is res judicata, nothing we have said, however, should be construed beyond that stated purpose.
Reversed and remanded with directions.
Paul W. Williams, U. S. Atty. for Southern District of New York, New York City (Mark F. Hughes, Jr., and Maurice N. Nessen, Asst. U. S. Attys., New York City, of counsel), for appellee.
Clarence D. McGann, pro se.
Before CLARK, Chief Judge, and MEDINA and HINCKS, Circuit Judges.
MEDINA, Circuit Judge.
The record indicates that appellant McGann and two associates, Henry John Foster and Earl Kill Smith, pleaded guilty in the United States District Court for the Southern District of New York on June 28, 1955, to the charge of robbing a bank in the Harlem section of New York City on August 12, 1954, in violation of
On August 11, 1955, eight days after the imposition of sentence, appellant filed a “Petition for Writ of Habeas Corpus,” in which he alleged “that his plea of guilty to an untrue bill was made under undue duress and hardship and a direct violation of your petitioners constitutional rights.” The petition was denied without a hearing by Judge Herlands on September 13, 1955. Appellant did not appeal.
On December 12, 1955, appellant filed a “Motion to Withdraw Plea of Guilty under 32(d) of the Rules of Criminal Procedure [18 U.S.C.]” in which he alleged, inter alia, “That said plea was made under undue influence and coercion by my Court appointed counsel, namely Samuel B. Altman.”1 On December 19, 1955, the motion was denied by Judge Murphy, again without a hearing, and again appellant took no appeal.
On January 30, 1956, appellant filed his third post-conviction motion attacking the validity of his sentence. In his “Petition for Writ of Habeas Corpus to Set Aside Sentence and Grant a New Trial” under
We find no occasion to comment on the merits of appellant‘s claim of infringement of constitutional rights in connection with the New York conviction and sentence, because
“* * * the history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. * * * the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.”
“Thus,” we held in United States v. Bradford, 2 Cir., 194 F.2d 197, 200, certiorari denied 347 U.S. 945, 74 S.Ct. 642, 98 L.Ed. 1093, “the section should be read as coextensive in substance with the writ, and as confined to amending the procedure.” In McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238, the Supreme Court settled beyond cavil that federal habeas corpus may not be used as a means of securing the judicial decision of any question which, even if determined in the prisoner‘s favor, could not result in his immediate release. It follows that
Affirmed.
CLARK, Chief Judge (concurring).
I agree with the affirmance here and the ground upon which it is placed. But since McGann is a persistent movant and since there seems to be one underlying issue troubling him, I think it more constructive and in keeping with our guardianship (more or less) of those incarcerated in our prisons to suggest a course which might and should settle things. McGann has been ill advised to make foolish charges—contrary to the obvious indications of the record—against his court appointed lawyer and, more lately, against the Assistant U. S. Attorney. For actually he makes no complaint against his twenty-year sentence from the Maryland federal court and his real grievance is that he may have to serve nearly a year more under his sentence from the court below. This comes about because he was sentenced in Maryland on September 24, 1954, and in New York on August 3, 1955. Judge Ryan below was specifically asked by McGann‘s counsel to make his sentence completely concurrent and apparently so intended, for his formal judg