Crockett v. United States, 9894.

• Citation: 125 F.2d 547
• Decision Date: 16 February 1942
• Docket Number: No. 9894.,9894.
• Parties: CROCKETT v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

125 F.2d 547 (1942)

CROCKETT v. UNITED STATES.

No. 9894.

Circuit Court of Appeals, Ninth Circuit.

January 20, 1942.

Rehearing Denied February 16, 1942.

Robert S. Morris, Jr., of Los Angeles, Cal., for appellant.

Wm. Fleet Palmer, U. S. Atty., and Walter M. Campbell, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment of the district court denying a motion entitled "The Petitioner's Verified Motion for Correction of Sentence." The pleading is inartificially drawn. Among its prayers it asks as in habeas corpus "that he be forthwith brought before this Honorable Court." In effect, it seeks a habeas corpus proceeding in which petitioner presents issues which also would be considered under a writ coram nobis. See Robinson v. Johnston, 9 Cir., 118 F. 2d 998. "A petition for a writ of habeas corpus ought not to be scrutinized with technical nicety. Even if it is insufficient in substance it may be amended in the interest of justice." Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392. Here no amendment is needed to make clear the essence of the claim of wrong done the petitioner or his right to present it in a habeas corpus proceeding. Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859.

The petition claims that a judgment and sentence for twenty-five years' imprisonment for the crime of assaulting a Postmaster with intent to rob, steal and purloin mail matters in violation of 18 U.S.C. § 320, 18 U.S.C.A. § 320, are void (a) because appellant's plea of guilty, made by him, a layman ignorant of the law and without counsel, was induced by an agreement with a Post Office Inspector and the prosecuting attorney that if he plead guilty he would be sentenced to ten years, though the statute made mandatory, on conviction, a sentence of twenty-five years, and (b) because he was deprived of the right to be informed of the nature of the crime charged in the indictment, he having been refused a copy thereof.

The petitioner's pleading incorporated a transcript of the proceedings leading to the sentence. This discloses that he was then represented by counsel. It is not alleged to the contrary and we must assume he knew the nature of his client's claim to set the plea aside. The transcript reads:

"The Court: U. S. vs. William C. Crockett and Robert Taylor, No. 1947 and No. 1950, criminal.

"On the record in this case: A plea of guilty having been entered, sentence of twenty-five years is mandatory under the Federal statutes.

"Mr. Myers Attorney for appellant: May it please your Honor, these two men inform me that they would like to withdraw their —

"Defendant Crockett: Judge, your Honor, I would like to ask —

"The Court: If you want to speak to your counsel, go on.

"Mr. Myers. All right, go ahead and explain.

"Defendant Crockett: Judge, your Honor, this is kind of a complicated affair—

"The Court: I can't hear you. Step over around here on this side.

"Defendant Crockett: Your Honor, this is a complicated affair. I dislike to plead guilty — at least to something that I am not guilty of — and I would like to ask to have a few more days' grace.

"The Court: Well, you have pleaded guilty to this charge. Do you want to withdraw your plea?

"Defendant Crockett: Well, could it stand as it is for a couple of more days?

"The Court: Why? ........

"(No answer by Defendant Crockett).

"The Court: Defendant Crockett, you are sentenced to serve a term of twenty-five years in such Federal penitentiary as may be designated by the Attorney-General."

It thus appears that, unlike in Smith v. O'Grady, 312 U.S. 329, 61 S. Ct. 572, 85 L.Ed. 859, before appellant was sentenced he was represented by counsel, and they were given full opportunity to present to the court the alleged agreement with the Postal Inspector and prosecutor and appellant's alleged want of knowledge of the nature of the indictment. Having had such opportunity before sentence to present these alleged facts, appellant's pleading fails to state a cause of action for setting aside the judgment and sentence. Even if appellant had moved therefor within the time to invoke the action of the judge imposing the sentence, the judge's exercise of his discretion in denying the motion would be sustained on appeal. Fogus v. United States, 4 Cir., 34 F.2d 97, 99. A fortiori should his action not be set aside in a collateral proceeding brought four years later. Waley v. Johnston, 9 Cir., 124 F.2d 587, decided December 20, 1941. State ex rel. Orr v. Latshaw, 291 Mo. 592, 237 S.W. 770.

Since the appellant's pleading disclosed no cause of action for the issuance of a writ of habeas corpus or for relief otherwise, it is unnecessary for us to consider other assignments of error in the proceeding below.

Affirmed.

STEPHENS, Circuit Judge (concurring).

Although the petition lacks craftsmanship and is incorrectly labeled "A Motion To Correct A Judgment" there is no mistaking the petitioner's intention. He alleges many times that the judgment upon which he was committed to the penitentiary is void and I think that question was before the trial court. The only correction possible for a void judgment in a criminal case is to set it aside.

Whether the petition is in effect a petition for the issuance of the writ of Habeas Corpus or for the writ of coram nobis is not of first importance notwithstanding the former is in the nature of a civil proceeding and issues independently of any other proceeding while the latter issues out of a parent proceeding.

In the light of this court's opinions and decisions in Robinson v. Johnston, 9 Cir., 118 F.2d 998; Crockett v. Johnston, 9 Cir., 109 F.2d 444, and Waley v. Johnston, 9 Cir., December 20, 1941, 124 F. 2d 587, I concur in the affirmance of the judgment although I do not want to be understood as approving either of them.

MATHEWS, Circuit Judge (dissenting).

On January 6, 1937, in the District Court of the United States for the Southern District of California, appellant was indicted for assaulting a postmaster with intent to rob, steal and purloin mail matter, in violation of § 197 of the Criminal Code, 18 U.S.C.A. § 320. On April 8, 1937, appellant was arraigned, pleaded guilty and was sentenced to be imprisoned for 25 years. The Attorney General designated as the place of appellant's confinement the United States penitentiary at McNeil Island, Washington. Thence, by order of the Attorney General, appellant was removed to the United States penitentiary at Alcatraz, California, at which place appellant has ever since been and is now confined.

On June 22, 1939, appellant petitioned the District Court of the United States for the Northern District of California for a writ of habeas corpus. On June 29, 1939, that court entered an order denying the petition. We affirmed the order on January 8, 1940. Crockett v. Johnston, 9 Cir., 109 F.2d 444.

On June 5, 1941, appellant petitioned the District Court of the United States for the Southern District of California for leave to file a motion in the criminal case — the case in which appellant pleaded guilty and was sentenced on April 8, 1937. Leave was granted and the motion was filed on June 5, 1941. Thereafter the court heard the motion and, on June 20, 1941, made the order from which this appeal is prosecuted.

The first question confronting us is whether we have jurisdiction of the appeal. Though not raised by the parties, the question is here and has to be decided. City and County of San Francisco v. McLaughlin, 9 Cir., 9 F.2d 390; Credit Bureau of San Diego v. Petrasich, 9 Cir., 97 F.2d 65, 67.

By § 128(a) of the Judicial Code, 28 U.S.C.A. § 225(a), circuit courts of appeals are invested with "appellate jurisdiction to review by appeal final decisions * * * In the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court." With inapplicable exceptions,¹ decisions other than final decisions are not reviewable. Hence the question we have to determine is whether the order here appealed from was a final decision within the meaning of § 128(a). To determine this question, we must first consider the motion to which the order related.

The motion was not one to vacate or set aside a judgment. It therefore was not such a motion as, in Robinson v. Johnston, 9 Cir., 118 F.2d 998, 1001, was held to be "in legal effect equivalent to an application for a writ of error coram nobis at common law." We therefore have no occasion either to reaffirm or to overrule the...