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07/07/59 Norman E. Smith, v. United States of America

July 7, 1959

NORMAN E. SMITH, APPELLANT

v.

UNITED STATES OF AMERICA, APPELLEE.



Before PRETTYMAN, Chief Judge, and EDGERTON, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1959.CDC.103

July 7, 1959. Decided

PER CURIAM.

The action of the District Court in refusing to entertain the motion filed February 25, 1958, is reversed and the case is remanded for hearing and further proceedings on that motion under Title 28 U.S.C. 2255, on the issue of appellant's competency at the time of his trial.

Circuit Judge FAHY files an opinion, in which Circuit Judges EDGERTON, BAZELON and WASHINGTON join, concurring in the judgment of the court.

Circuit Judge DANAHER files an opinion, in which Circuit Judge BURGER joins, concurring in the judgment of the court.

Chief Judge PRETTYMAN files an opinion concurring in the judgment of the court.

Circuit Judges WILBUR K. MILLER and BASTIAN file separate dissenting opinions, each however concurring with the other.

FAHY, Circuit Judge, with whom EDGERTON, BAZELON and WASHINGTON, Circuit Judges, join.

On April 6, 1957, appellant filed in the District Court, where he had been sentenced for robbery, a motion under 28 U.S.C. § 2255 (1952) to vacate the sentence, alleging that his counsel had been ineffective at the trial. The motion was denied and no appeal was taken. On February 25, 1958, appellant filed a second or successive motion to vacate the same sentence, raising for the first time the issue of his "mental competency to stand trial." This motion referred to 18 U.S.C. § 4245, but was treated by the court as coming within § 2255 as well. I agree this was proper, and the United States does not contend to the contrary. Indeed, the opinion of the District Court, see United States v. Smith, D.C.D.C. 1958, 160 F.Supp. 256, is primarily devoted to consideration of the motion as one filed under § 2255.

The motion of February 25, 1958, alleged that upon examination by a psychiatrist at the District of Columbia Reformatory appellant's I.Q. had been found to be 53-Defective, less than "borderline mental defective." *fn1 If appellant when tried was not mentally competent to understand the proceedings or properly to assist in his defense the setence should have been vacated. Seidner v. United States, 104 U.S.App.D.C. 214, 260 F.2d 732; Lloyd v. United States, 101 U.S.App.D.C. 116, 247 F.2d 522. And see Massey v. Moore, 348 U.S. 105, 75 S. Ct. 145, 99 L. Ed. 135. Nevertheless the court refused to entertain the motion, followed by this appeal. The court relied upon the provision in § 2255 which reads,

"The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." *fn2

The court concluded that since the second motion attacked the same sentence it was for relief similar to that sought in the earlier motion and need not be entertained.The court also said that it was motivated by the fact that the motion was based manifestly on an afterthought, and discussed its reasons for so concluding. But the precise ruling of the court was that it would not entertain the motion. The motive of the court does not here alter the ruling made.The learned District Judge was emphatic that he would not entertain the motion, could not be required to do so, and that his decision not to do so was unreviewable. Accordingly, as it seems to me, we are called upon to consider the important questions decided by the District Court in disposing of the case.

In holding that its refusal to entertain the motion was unreviewable the court was in error. The United States does not contend otherwise even if the motion were for relief similar to that sought in the earlier motion. Section 2255 itself provides that an order entered on a motion under that section may be the subject of an appeal "as from a final judgment on application for a writ of habeas corpus," reviewable under 28 U.S.C. 2253 (1952). The language of § 2255 that the sentencing court "shall not be required" to entertain a second or successive motion for similar relief does not prohibit an appellate court from either reviewing the action of the District Court or, in appropriate circumstances, from directing that the motion be entertained. The language simply means that the District Court is not required to entertain a second or successive motion for similar relief but may do so in the exercise of a sound discretion, its action being reviewable for abuse of discretion. Turner v. United States, 103 U.S.App.D.C. 313, 258 F.2d 165. And see Dunn v. United States, 6 Cir., 1956, 234 F.2d 219, 221, certiorari denied 352 U.S. 899, 77 S. Ct. 140, 1 L. Ed. 2d 90, and Chief Judge Laws' opinion in United States v. Newman, D.C.D.C.1954, 126 F.Supp. 94. *fn3 In short, the refusal of the court to entertain the motion was judicial action subject to judicial review under the terms of § 2255 itself.

When a second or successive motion is not for similar relief, and raises an issue appropriate for decision on collateral attack upon a sentence, no discretion resides in the court to refuse to entertain the motion. A fortiori the refusal to do so is reviewable on appeal. The District Court is required to entertain a second or successive motion which is not for similar relief, to apply the basic provision of § 2255, which reads,

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon," and to determine the issues under the procedures set forth in the remainder of the section, note 2 (supra).

As I interpret the statutes the motion alleging incompetency at the time of trial was not for relief similar to that sought in the earlier motion alleging ineffectiveness of counsel. Accordingly, the motion should have been entertained. I reach this conclusion on the basis of the language of § 2255, construed in light of the history and purpose of this section and of the related statute, 28 U.S.C. § 2244 (1952) (infra ) notwithstanding some ambiguities in the history of the two statutes.

As explained in United States v. Hayman, 342 U.S. 205, 72 S. Ct. 263, 96 L. Ed. 232, § 2255 was enacted to relieve district courts near large federal prisons of numerous applications for writs of habeas corpus filed by the prisoners; these courts were overburdened by such applications and, moreover, did not have readily available the records of the courts where the applicants had been tried and sentenced.

The Supreme Court quotes the statement submitted to Congress on behalf of the Judicial Conference Committee on Habeas Corpus Procedure:

"The [ § 2255] motion remedy broadly covers all situations where the sentence is 'open to collateral attack.' As a remedy, it is intended to be as broad as habeas corpus." 342 U.S. at page 217, 72 S. Ct. at page 271. The Court goes on to state,

"Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum."

342 U.S. at page 219, 72 S. Ct. at page 272.

To complete the statutory plan there is a complementary provision in 2255 which actually eliminates the availability of habeas corpus where the new motion procedure can be used. See the last paragraph of § 2255, note 2 (supra). In this manner the legislation is rounded out so as to force collateral attacks into the sentencing courts through § 2255 motions. It follows that a sentencing court is required to entertain a second or successive § 2255 motion in those instances which would require, except for § 2255, the entertainment of a second or successive application for a writ of habeas corpus.

Our inquiry, then, is to ascertain when a second or successive application for a writ of habeas corpus, putting in issue the validity of a sentence and consequent detention, must be entertained. Again Congress has supplied the answer. Such an application must be entertained - there is no discretion to refuse to do so - when it presents "new ground not theretofore presented and determined." 28 U.S.C. § 2244 (1952), set forth in full in the margin. *fn4

It follows that a § 2255 motion is required to be entertained by the sentencing court when it presents ground "not theretofore presented and determined." This is "new ground" which prevents the motion from being one for "similar relief." This is so although the ultimate relief sought may be said to be similar in the sense that the second motion, like the earlier one, seeks a new trial or vacation or correction of sentence. Such relief is not deemed similar if sought upon a dissimilar ground of collateral attack. Likewise, though both earlier and later motions seek relief due to an asserted violation of the Constitution or laws of the United States, or lack of jurisdiction in the court to have imposed the sentence, such relief is not deemed similar when sought because of a dissimilar violation of the Constitution or laws of the United States or because of a dissimilar jurisdictional ground. *fn5

Due to the historical function of habeas corpus the doctrine res judicata has never applied to the writ, see Stewart v. Overholser (supra) and cases there reviewed. The doctrine, therefore, does not apply to § 2255 motions. See Heflin v. United States, 358 U.S. 415, at page 420, 79 S. Ct. 451, at page 454, 3 L. Ed. 2d 407, concurring opinion. While it is true that the ground of the successive application in Stewart v. Overholser was new in a factual sense, newness in habeas corpus proceedings has never been limited to new facts; it has always included different legal theory. *fn6 Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049, 92 L. Ed. 1356. Where the legal theory is fundamentally different, "the statute [ § 2255] does not give me any discretion to refuse to entertain the new motion." Judge Wyzanski's language in Green v. United States, D.C.D.Mass.1958, 158 F.Supp. 804, 808, affirmed on other grounds, 1 Cir., 1958, 256 F.2d 483. See, also, United States v. Newman, supra, *fn7 and United States v. Wantland, 7 Cir., 1952, 199 F.2d 237.

Unless § 2255 is thus construed to require the entertainment of a second or successive motion on ground which would be considered new in a second or successive application for a writ of habeas corpus the statutory structure carefully erected by Congress would collapse and the difficulties of judicial administration sought to be remedied would largely recur: second or successive collateral attacks would be forced into the habeas corpus courts notwithstanding the firm purpose of Congress to channel them into the courts where the prisoners were tried and sentenced to the full extent those courts could adequately dispose of them. There is no suggestion the sentencing court can not dispose of this second motion as adequately as a habeas corpus court.

It will be observed that the duty of the sentencing court to entertain a second or successive motion does not depend (a) upon a showing by the movant that if the ground advanced could have been but was not raised in an earlier motion he had justifiable reason for not previously asserting it, or (b) upon a showing that he was unaware of the significance of relevant facts. Such factors are relevant where the court has discretion, or where there is a problem of abuse of the processes of the court. They are irrelevant to a determination of what constitutes a second or successive motion for similar relief. In Price v. Johnston the Supreme Court required the District Court to entertain a fourth application for a writ of habeas corpus. Moreover, in rejecting the claim that the writ was unavailable because of abuse, the Court held that in order to defend on that ground the Government must assert it in the District Court, in which event a preliminary and separate disposition of that issue would be required. The Court said, 334 U.S. at pages 291-292, 68 S. Ct. at page 1063:

"[We] do not believe that the burden was on the petitioner of affirmatively alleging in the first instance that he had acquired new information or that he had adequate reasons for not raising sooner the issue . . .. It was enough if he presented an allegation and supporting facts which, if borne out by proof, would entitle him to relief." *fn8

The Court had pointed out that "the primary purpose of a habeas corpus proceeding is to make certain that a man is not unjustly imprisoned." This being so there is no discretion to deny a prisoner an opportunity to demonstrate the truth of allegations that his imprisonment is illegal on ground not previously asserted, unless perchance it is found that he has so abused the processes of the court that its doors are closed to him.

In Price v. Johnston the Court said:

"From the facts which we have previously detailed it is evident that this allegation [of the knowing use by the prosecution of false testimony] was not properly raised prior to the amendment of the fourth petition. ...


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