Young v. United States

• Citation: 337 F.2d 753
• Decision Date: 05 October 1964
• Docket Number: Misc. No. 25.
• Parties: Johnny YOUNG, alias Johnnie Clyde Simmons, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

337 F.2d 753 (1964)

Johnny YOUNG, alias Johnnie Clyde Simmons, Appellant, v. UNITED STATES of America, Appellee.

Misc. No. 25.

United States Court of Appeals Fifth Circuit.

October 5, 1964.

Before RIVES, JONES and GEWIN, Circuit Judges.

JONES, Circuit Judge.

The appellant, Johnny Young, having waived counsel, was convicted on his plea of guilty of the offense of interstate transportation of a stolen motor vehicle from Mobile, Alabama, to Pensacola, Florida,¹ on the 13th day of July 1956, and was sentenced to imprisonment for four years. There was no direct appeal, and the record shows the Marshal's return, "Defendant delivered on July 26-56 to U.S.P. at Atlanta, Ga., the institution designated by the Attorney General, with a certified copy of the within judgment and commitment." Appellant is presently confined in the Florida state penitentiary serving sentences for offenses against that State, but alleges that there is a "federal detainer."

His motion under Section 2255 of Title 28, United States Code, alleged that his federal sentence was illegal on a number of grounds, including the following:

"(c) Petitioner being `20 years of age\' and being indigent, under fear, had no counsel for his defense through fear, lack of representation ignorant to law. Lack of knowledge, lack the ways of judical (sic) proceeding persuation (sic) by threats of how much time he would receive, by the state officers in jail and was blindly led into the position of being convicted on a crime he enter (sic) a plea of guilty through fear. Of which he could have proven his innocent (sic) with the aid of a counsel. Wherefore Your Petitioner ask (sic) this Honorable Court to vacate and set aside his illegal sentence."

The district court denied the section 2255 motion without a hearing, on the ground that,

"* * * it affirmatively appearing that the files and records of the case, Pensacola Criminal No. 5121, conclusively show that petitioner is entitled to no relief, the official file of his sentencing showing that he was, in fact, fully and accurately informed of his constitutional rights in every regard prior to his entering a plea of guilty, and that he by his own free will and accord signed waiver of indictment, counsel and venue * * *."

On the same ground, the district court denied leave to appeal in forma pauperis and certified under 28 U.S.C. § 1915 that the appeal is not taken in good faith. The rulings of the district court can be sustained only if "* * * the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *." 28 U.S.C.A. § 2255. Before us is an appeal from the order of the district court.

The appellant sought to have his conviction set aside under 28 U.S.C.A. § 2255.² Since it is stated in the petition by which the appellant sought to invoke the jurisdiction of the district court that he was held in a prison of the State of Florida, it is clearly apparent that he is not a prisoner in custody under sentence of a federal court. He was in state custody. The question of jurisdiction under Section 2255 was not raised or passed upon in the district court, but if there is a lack of jurisdiction it can and should be here raised by the Court of its own motion. It has been well said that "the party seeking to invoke the jurisdiction of a federal court must demonstrate that the case is within the competence of such a court. * * * The rule is that the parties cannot confer jurisdiction which has not been vested in the court by the Constitution and Congress. The parties cannot waive lack of jurisdiction, whether by express consent, or by conduct, nor yet even by estoppel. The court, whether trial or appellate, is obliged to notice want of jurisdiction on its own motion." Wright, Federal Courts 14-15. It is pointed out by Professor Wright that Fed.R.Civ.Proc. 12(h), 28 U.S.C.A., provides that "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." If the district court entered an order denying relief in a proceeding where it was acting without jurisdiction this Court should sustain its action even though it did not consider the jurisdictional question.

Since United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, it has been understood that a proceeding under Section 2255 is the substantive equivalent of habeas corpus. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d. 417, reh. den. 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556. See Larson v. United States, 5th Cir. 1960, 275 F.2d 673, cert. den. 363 U.S. 849, 80 S.Ct. 1627, 4 L.Ed.2d 1732, where the rule is followed and the Hayman case is discussed. The first of the Supreme Court's recent pronouncements is in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, where it is said that Section 2255 is available only to attack a sentence under which a prisoner is in custody.

The opinion of this Court in Shelton v. United States, 5th Cir. 1957, 242 F.2d 101, requires consideration as to whether jurisdiction should be asserted by treating the appellant's Section 2255 motion as an application for a writ of coram nobis. In the Shelton case an application was made under Section 2255 by a petitioner who had been given a conditional release from the sentence he sought to have vacated. His status was the same, in regard to his movements, as one on parole. Although citing Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247,³ the Court thought the authorities were divided on the question as to whether the petitioner Shelton was in custody while on parole. The Section 2255 application was treated as an application for coram nobis and, so treating it, the Court decided that the cause should be remanded. The Court, in an en banc rehearing, set aside the judgment of the panel and held that the judgment of the district court should be affirmed. Shelton v. United States, 5th Cir. 1957, 246 F.2d 571. The Supreme Court, by a brief per curiam opinion, vacated the judgment of this Court and remanded to the district court. Shelton v. United States, 356 U.S. 26, 79 S.Ct. 563, 2 L.Ed.2d 579.

Neither the Court of Appeals sitting en banc nor the Supreme Court considered the basis for jurisdiction; nor did either express any view as to whether jurisdiction was exercised under Section 2255 or of a coram nobis proceeding. If any doubt was left by Anderson v. Corall, the doubt has been put to rest by the unanimous decision of the Supreme Court in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, 92 A.L.R.2d 675. There it was held that a state prisoner, placed on parole, was under such restraint as would support the issuance of habeas corpus. See Hoptowit v. United States, 9th Cir. 1960, 274 F.2d 936. We need not consider the various degrees of restraint under the parole and probation systems of the several states. See Annotation 92 A.L.R. 2d 675, 682. Shelton was convicted of a federal offense. Federal restraint over a parolee is no less than that considered by the Court in Jones v. Cunningham. The rule there stated is of course applicable in Section 2255 cases such as Shelton. In the light of the Anderson and Jones cases there was such "custody" in Shelton as sustained Section 2255 jurisdiction and we do not think the Supreme Court held otherwise. Van Meter v. Sanford, 5th Cir. 1938, 99 F.2d 511, holding that the moral restraint of parole is not such custody as will support habeas corpus, is no longer a controlling precedent.

Our record does not disclose how Young got out of federal prison and into a Florida prison. If we were permitted to indulge in a conjecture or surmise, of which we are so critical when done by those tribunals whose decisions we review, we might conjecture or surmise that he had been given a conditional release or parole from the place where he had been confined by federal authority and had then been taken into custody by the Florida law enforcement officers. But if we had some proof of what we cannot surmise or conjecture, we would be unable to treat the conditional release or parole as federal custody to support Section 2255 jurisdiction. Young is in the Florida penitentiary. There cannot be dual or joint custody. An order of release under Section 2255 would be a nullity. We think there was no custody as to sustain jurisdiction under Section 2255.

We think we ought not to follow the rule stated in Crow v. United States, 9th Cir. 1950, 186 F.2d 704, where the Court refused to treat a motion under Section 2255 as an application for relief under Fed.R.Crim.Proc. 32(d), 18 U.S. C. In so doing the Court said, "Courts cannot be required to search for possible grounds upon which to grant relief. Their function is performed when they dispose of matters properly presented." 186 F.2d 704, 706. Rather we would adopt the practice of the Tenth Circuit which has said that "A Section 2255 motion can be treated as an application for a writ of coram nobis, and the validity of the sentence may then be tested, in an appropriate case." Igo v. United States, 10th Cir. 1962, 303 F.2d 317, 318. But it is only in an appropriate case that coram nobis will lie. It is an extraordinary remedy and one that should be allowed only under circumstances compelling such action to achieve justice. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248. In the Morgan case relief by coram nobis was granted because the federal conviction was taken into account by a state court in imposing sentence for a state crime. In Marcello v. United States, 5th Cir. 1964, 328 F.2d 961, this Court sustained coram nobis relief where the judgment of conviction was being made the basis of a deportation order. We find no circumstance here that compels the treatment of the Section 2255 motion as an application for a writ of coram nobis. This case is not unlike Ragavage v. United States, 5th Cir. 1959, 272 F.2d 196...