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March 21, 1958

Norman E. SMITH, Defendant

The opinion of the court was delivered by: HOLTZOFF

This is a motion filed by the defendant in propria persona to set aside and vacate a sentence. The motion is based on 28 U.S.C.A. 2255, *fn1" and on 18 U.S.C. 4245.

 The case was then referred to the Probation Office for a presentence investigation, in the course of which the defendant was interviewed at length by the Probation Officer, as is the usual practice in such matters. It appeared from the presentence investigation report that the defendant had been sentenced on May 8, 1953 for a similar crime and had been paroled from prison only one month prior to his arrest on the charges involved in this case. On February 10, 1956, this court imposed a sentence of imprisonment for a term of twenty months to five years on each court, to be served consecutively. In other words, the aggregate sentence was five years to fifteen years, although such a sentence could have been imposed separately on each of the three counts. In that even the total would have been fifteen years to forth-five years.

 On December 30, 1956, the defendant wrote a letter to the court, in his own handwriting, in which he requested a reduction of the sentence because he did not believe he would have a chance of parole. He added in his letter: 'I must state I've just about learned my lesson.'

 On April 6, 1957, the defendant filed a handwritten motion, mailed from the District of Columbia Reformatory in Lorton, Virginia, to vacate and set aside the sentence under 28 U.S.C. § 2255, on the alleged ground that he had not been adequately represented by counsel at his trial. There were no specifications indicating wherein counsel was claimed to have been inadequate. Accordingly, leave to file the motion in forma pauperis was denied. *fn2" It is interesting to observe that the presentence investigation report shows that when interviewed by the Probation Officer, the defendant stated that his lawyer said everything necessary for him

 On February 25, 1958, the defendant submitted by mail from the Reformatory, another handwritten motion in propria persona to vacate the judgment, this time invoking 18 U.S.C. § 4245, as well as 28 U.S.C. § 2255. He now alleges that it has been ascertained in the institution in which he is incarcerated that he has a very low I.Q., and on this basis contends that he was not mentally competent to stand trial. His naivete seems to be exceeded only by his ingenuity and his temerity. In order to make final disposition of the matter, *fn3" the court will consider this motion both from the standpoint of 28 U.S.C. § 2255 and 18 U.S.C. § 4245.

 Section 2255 of Title 28 U.S.Code, which is quoted at length in the margin, contains the following significant limitation:

 'The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.'

 One may well wonder why this emphasis, why this discussion of a perfectly simple point, why labor the obvious. Unfortunately, however, it is rendered desirable to do so by the fact that the provision above quoted has sometimes been overlooked or ignored, and its clear meaning has not always been acknowledged. If the legislative branch enacts a statute that is repugnant to the Constitution, it is within the power of the courts to decline to apply it and to declare it invalid. If the Congress passes a measure that is vague, indefinite, or susceptible of more than one interpretation, it is the function of the courts to construe the statute and to determine what meaning should be attached to it. This even may be done in the rather rare cases in which the statute is in fact unambiguous, but a literal construction would lead to a manifestly absurd or unjust result that could not possibly have been intended by the legislature. *fn4" If, however, the enactment, as is true in the instant case, is clear, precise, definite, unambiguous and unequivocal, as has been stated above, the judicial branch may not attach to it a different meaning than appears upon its face even though there may be a strong temptation to do so. Otherwise the courts would be legislating, and thereby encroaching on the power of the legislative department of the Government, contrary to the basic principle of the separation of powers. The legislative and the executive branches are guardians of the Constitution and the laws equally with the judiciary. *fn5"

 It was observed some years ago by Mr. Justice Stone in the trenchant, vigorous style that was so characteristic of him, that,

 '* * * while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.' *fn6"

 To be sure, Mr. Justice Stone was referring to the power of the courts to declare statutes unconstitutional. His remarks are equally applicable to judicial construction of statutes.

 The weight of authority applies the above mentioned provision of § 2255 as written. Thus, in Hamilton v. United States, 4 Cir., 204 F.2d 927, 928, the court stated that, 'The District Court was not required to entertain a second motion to set aside the sentence'. In that case the bench was composed of Chief Judge Parker and Judges Soper and Dobie. This decision is of peculiar importance because Judge Parker was the Chairman of a Committee of the ...

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