that drafted the legislation which eventually became 28 U.S.C. § 2255.
In Palmer v. United States, 10 Cir., 249 F.2d 8, 9, it was stated that, '* * * no right exists to be heard upon successive motions filed under Sec. 2255'. The following authorities are to the same effect: United States v. Spadafora, 7 Cir., 200 F.2d 140, 142; United States v. Brown, 7 Cir., 207 F.2d 310, 311.
The Court of Appeals for the District of Columbia Circuit reached the same result in Morris v. United States, 101 U.S.App.D.C. 296, 248 F.2d 618, 619. In that case Judge Prettyman, with whom Judge Washington and Judge Burger concurred, quoted the provision that 'The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner', and added, that 'under the specific terms of the statute the court was not required to entertain the motion now before us. That disposes of the case'.
The history of what have been latterly denominated as 'post conviction remedies', -- a term of recent origin, -- indicates a good reason and sound basis for this limitation. Traditionally, the accused in a criminal case is entitled as of right to one trial and one appeal. If he is found guilty and the judgment is affirmed on appeal, or if he fails to appeal, ordinarily there is no reason for disturbing the conviction. The interests of the public to be protected against depredations of those member of society who have insufficient regard for the rights of others, as well as the orderly administration of justice, demand that there be an end to litigation, except under extraordinary or exceptional circumstances.
The development of so-called post conviction remedies in the Federal courts may be said to have been started by permitting writs of habeas corpus to be used to review claims of alleged deprivation of constitutional rights, even though the defendant was imprisoned pursuant to a judgment of conviction by a court of competent jurisdiction.
The function of the great prerogative writ of habeas corpus, however, which originated in the common law and was made a part of English statutory law by the famous Habeas Corpus Act, and later given the protection of the Constitution of the United States, was solely to prevent imprisonment without a trial.
The Revised Statutes of 1873-4 contained a provision that the court in hearing a habeas corpus proceeding, shall dispose of the matter 'as law and justice require'.
This phrase was dormant for a great many years. It may be doubted whether it had originally been intended by the Congress to change the pre-existing law. A line of decisions of the Supreme Court, however, later interpreted it as allowing the writ of habeas corpus to be used as a post conviction remedy to determine whether the defendant had been deprived of a constitutional right. Thus, this development resulted in what are really two different writs called by the same name. One is the prerogative writ of habeas corpus, which has been regarded as a palladium of liberty and which is protected by the Constitution. Its function is to prevent imprisonment without a trial. The other writ of habeas corpus, which is a statutory writ, and for the sake of clarity might well have been given a different appellation, initiates a proceeding to review allegations that in the course of the trial which resulted in his conviction, the defendant was deprived of a constitutional right
The use of the writ of habeas corpus by convicted prisoners to test the question whether at their trials they were deprived of any constitutional rights, increased to a degree that a very heavy burden was imposed on Federal courts for districts in which Federal penal institutions were located. What was even worse, it resulted in a review by one judge of proceedings before a judge of another district, frequently a distant district. In order to cure this deplorable situation, the Judicial Conference of the United States appointed a Committee, which was headed by Judge Parker to survey this subject. This Committee eventually drafted the legislation that was later enacted in the form of 28 U.S.C. 2255. The purpose of the measure was to require such a review to be made by motion before the sentencing judge.
It was anticipated, however, that this remedy might be subject to abuse. Subsequent events show that this anticipation was well founded. In order to check some of the possible abuses, the statute empowered the district judge to limit a defendant to only one such motion in which he should place all the grounds in support of the relief that he sought. This is manifestly the reason why there was included in the statute the provision that the district court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner
In this case the court will exercise the authority conferred on it by this provision and hereby refuses to entertain the present motion. The court is motivated by the obvious fact that the ground on which this motion is based is manifestly an afterthought. There was no suggestion at the trial by defense counsel, who was zealous and energetic in the protection of his client's rights, or by the defendant's mother or brother who testified in his behalf, or by the defendant himself, that he was mentally incompetent to understand the nature of the proceedings against him, or to assist in his defense. The interview that the Probation Officer had with him in the course of the presentence investigation did not disclose any mental abnormality or any inability to discuss his case intelligently. On the contrary, he seemed to understand his position fully, as he informed the Probation Officer that he did not take the stand in his own behalf at the trial because his lawyer said everything that was necessary in his behalf. To hold a hearing at this late date as to the mental competency of the defendant in January, 1956, -- more than two years ago -- would be a burdensome and entirely unnecessary proceeding, and indeed it might be difficult to produce evidence bearing on that question because of the remoteness of time.
The defendant also invoked Section 4245 of Title 18 of the United States Code. The pertinent portions of that section read as follows:
'Whenever the Director of the Bureau of Prisons shall certify that a person convicted of an offense against the United States has been examined by the board of examiners referred to in title 18 United States Code, section 4241, and that there is probable cause to believe that such person was mentally incompetent at the time of his trial, provided the issue of mental competency was not raised and determined before or during said trial, the Attorney General shall transmit the report of the board of examiners and the certificate of the Director of the Bureau of Prisons to the clerk of the district court wherein the conviction was had. Whereupon the court shall hold a hearing to determine the mental competency of the accused in accordance with the provisions of section 4244 above, and with all the powers therein granted * * *.'
Obviously the defendant may not rely on the provisions of the section. They can be set in motion only by a certificate of the Director of the Bureau of Prisons.
There is no such certificate in this case. The defendant may not institute such a proceeding on his own motion
The motion to vacate sentence will not be entertained.