187 F.2d 192 (D.C. Cir. 1950), 10471, Smith v. United States

Docket Nº:10471.
Citation:187 F.2d 192
Party Name:SMITH v. UNITED STATES.
Case Date:December 07, 1950
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 192

187 F.2d 192 (D.C. Cir. 1950)

SMITH

v.

UNITED STATES.

No. 10471.

United States Court of Appeals, District of Columbia Circuit.

December 7, 1950

Argued June 30, 1950.

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Paul A. Porter, Washington, D.C. (appointed by this Court), with whom G. Duane Vieth, Washington, D.C., was on the brief, for appellant.

Charles B. Murray, Asst. U.S. Atty., with whom Messrs. George Morris Fay, U.S. Atty., and Joseph M. Howard, Asst. U.S. Atty., were on the brief, for appellee.

Before WILBUR K. MILLER, FAHY, and WASHINGTON, Circuit Judges.

FAHY, Circuit Judge.

The appeal is by James M. Smith from a denial by the District Court of his motion filed pursuant to 28 U.S.C.A. 2255. 1 The motion was to vacate a judgment based upon his conviction in February, 1937, of second degree murder after trial by jury in

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the court below. He was sentenced to life imprisonment. During his trial he was represented by two attorneys and there was no appeal. 2 He does not complain of lack or inadequacy of counsel.

We treat his motion as including not only the paper so entitled but also the Statement of Facts submitted by counsel appointed to represent him on the motion and the Oral Statements of Factual Contentions made by his counsel on argument of the motion below, and reproduced in the Joint Appendix. The District Court held that the allegations of the motion, if proved, would not entitle appellant to relief under Sec. 2255 and accordingly denied the motion. 3 The allegations relied upon, as set forth by counsel appointed by this court to represent appellant on the appeal, are as follows: 4

' * * * Appellant, while a patient at Mt. Alto Hospital, was arrested by officers of the District of Columbia police on or about August 3, 1935, on a charge of bigamy. Appellant was taken to the Number 2 Precinct House and held there for a period of approximately thirteen days before being taken before a magistrate for arraignment. During this period of detention, appellant was questioned, primarily by Officer W. S. Beck, about a number of crimes, and in particular about the rape and murder for which he was subsequently convicted.

'Appellant was denied the right to communicate with friends or counsel during the period of his detention and was subjected to continuous questioning questioning and physical and psychological torture, coercion and duress in an attempt on the part of Beck and other officers to obtain a confession. Although appellant did not confess to the murder of Mrs. Dancy, Officer Beck testified against appellant in the murder trial with respect to his interrogation during appellant's detention. 5

'Also, during appellant's detention, Officer Beck forcibly applied black dye to appellant's gray hair, and subsequently presented appellant to witnesses for identification. These witnesses identified appellant and testified against him on the trial.'

I. The first reliance of appellant is that when arrested in August, 1935, for bigamy he was detained and mistreated, as stated above, before being taken to a committing magistrate. If a confession resulted and was used in evidence, a conviction should have been reversed on appeal. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. That statements of an exculpatory or inculpatory character, rather than a confession, were so obtained and used, would not obviate the error. Bram v. United States, 1897, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. Further, Watts v. Indiana, 1949, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801, and Malinski v. New York, 1945, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029, provide substantial support for the view that the police action here alleged, if it occurred, violated appellant's constitutional rights and that his conviction based on evidence so obtained would have been in violation of the Due Process Clause of the Fifth Amendment. In the Watts case the Court said: ' * * * To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural

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standards of due process.' 338 U.S.at page 54, 69 S.Ct.at page 1350.

In both, the Watts and Malinski cases, however, the attack was direct, by appeal from the judgment of conviction. The proceedings now before us, on the other hand, arise upon a collateral attack under Sec. 2255. Thus the question before us is not whether such a deprivation of constitutional rights requires reversal upon an appeal but whether it provides basis for a motion to vacate under Sec. 2255.

We recently indicated that the scope of review on such attack is the same as in habeas corpus cases. Meyers v. United States, 1950, 86 U.S.App.D.C. 320, 181 F.2d 802. Section 2255 was enacted, as stated in the Reviser's Notes, to provide 'an expeditious remedy for correcting erroneous sentences without resort to habeas corpus.' Since federal prisoners ordinarily are not detained in the jurisdiction in which they were tried and the records reside, habeas corpus proceedings in the jurisdiction of detention presented difficulties avoided by proceedings under Sec. 2255. It is desirable, therefore, to inquire into the scope of review by habeas corpus procedures after conviction of crime.

The Supreme Court has not specifically ruled on the question now before us. Originally habeas corpus was available only to test the jurisdiction of the court rendering the judgment of conviction. In a series of decisions dating from 1915, however, the Supreme Court expanded the scope of the inquiry. In the first of these, Frank v. Magum, 1915, 237 U.S. 309, 335, 35 S.Ct. 582, 590, 59 L.Ed. 969, the Court said that mob domination of the trial violates due process of law and could be raised on habeas corpus. ' * * * if the state, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the state deprives the accused of his life or liberty without due process of law.'

But it was thought the petitioner had not proven the domination.

In Moore v. Dempsey, 1923, 261 U.S. 86, 91, 43 S.Ct. 265, 266, 167 L.Ed. 543, the question of mob domination came up on demurrer to an application for writ of habeas corpus, again after conviction in a state court. Holding that the writ should be granted, the Supreme Court said: ' * * * It certainly is true that mere mistakes of law in the course of a trial are not to be corrected in that way. But if the case is that the whole proceeding is a mask- that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.'

In Mooney v. Holohan, 1935, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, an original writ of habeas corpus was sought in the Supreme Court. It was refused for failure first to exhaust other remedies; but the Court said that due process of law was violated by a state criminal conviction procured by the use of perjured testimony known to be perjured by the prosecutor and known to be perjured by the prosecutor and that habeas corpus could challenge such a conviction, though not on original application in the Supreme Court.

Johnson v. Zerbst, 1938, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, held that ' * * * If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.' Habeas corpus was held a proper method of challenging the conviction.

Bowen v. Johnston, 1939, 306 U.S. 19, 26-27, 59 S.Ct. 442, 446, 83 L.Ed. 455, is heavily relied upon by the appellant. There the petitioner alleged that the United States did not have jurisdiction over the locus of the crime and thus had no jurisdiction to try him. Chief Justice Hughes wrote for the Court: ' * * * The rule requiring resort to appellate procedure when the trial court has determined its own jurisdiction of an offense is not a rule denying the power

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to issue a writ of habeas corpus when it appears that nevertheless the trial court was without jurisdiction. The rule is not one defining power but one which relates to the appropriate exercise of power. It has special application where there are essential questions of fact determinable by the trial court. Rodman v. Pothier, supra (264 U.S. 399, 44 S.Ct. 360, 68 L.Ed. 759). It is applicable also to the determination in ordinary cases of disputed matters of law whether they relate to the sufficiency of the indictment or to the validity of the statute on which the charge is based, Id.; Glasgow v. Moyer, supra (225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147); Henry v. Henkel, supra (235 U.S. 219, 35 S.Ct. 54, 59 L.Ed. 203). But it is equally true that the rule is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'

The exceptional circumstance was 'uncertainty and confusion with respect to the question and Chattanooga National Park are triable in the state or federal courts.' The statement of the Court principally relied on by appellant is as follows: ' * * * But if it be found that the court had no jurisdiction to try the petitioner, or that in its proceedings his constitutional rights have been denied, the remedy of habeas corpus is available....

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