339 F.2d 389 (9th Cir. 1964), 19299, Matysek v. United States

Docket Nº:19299.
Citation:339 F.2d 389
Party Name:Manuel Lee MATYSEK, Appellant, v. UNITED STATES of America, Appellee.
Case Date:December 11, 1964
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 389

339 F.2d 389 (9th Cir. 1964)

Manuel Lee MATYSEK, Appellant,

v.

UNITED STATES of America, Appellee.

No. 19299.

United States Court of Appeals, Ninth Circuit.

December 11, 1964

          Rehearing Denied Jan. 15, 1965.

Page 390

         Morris Lavine, Los Angeles, Cal., for appellant.

         Francis C. Whelan, U.S. Atty., Richard A. Murphy, Asst. U.S. Atty., Chief, Criminal Section, David R. Nissen, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

         Before BARNES and HAMLIN, Circuit Judges, and PENCE, District Judge.

         BARNES, Circuit Judge:

         Appellant seeks review of the denial of her motion to vacate and set aside the judgment convicting her of the violation on four counts of 21 U.S.C. § 174. Her motion, so denied, was made under 28 U.S.C. § 2255, 1 and Rule 35 of the Federal

Page 391

Rules of Criminal Procedure. 2 Appellant's original conviction had been appealed to this court, and her conviction affirmed. 3 A petition for rehearing of the original appeal was denied on August 21, 1963, and the United States Supreme Court denied a petition for writ of certiorari. 4

         On the original appeal appellant raised the question whether entrapment was proved as a matter of law. We held that the question was one for the trier of fact to determine, which he had, adversely to appellant. We affirmed.

          This same question of entrapment is again raised by this proceeding; and improperly so. Appellant seeks to raise by this § 2255 proceeding an issue already passed upon by this court, and, inferentially, by the United States Supreme Court. This she cannot do. Dodd v. United States, 321 F.2d 240, 243 (9th Cir. 1963); Black v. United States, 269 F.2d 38, 41-42 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960). Entrapment is a defense which must be raised at the trial, and taken up on direct appeal. It is not an issue which can be raised to attack a judgment collaterally under § 2255. Turner v. United States, 262 F.2d 643 (8th Cir. 1959); United States v. Lyons, 256 F.2d 749 (2d Cir.), cert. denied 358 U.S. 911, 79 S.Ct. 240, 3 L.Ed.2d 232 (1958); Stanley v. United States, 239 F.2d 765 (9th Cir. 1957); Anderson v. United States, 338 F.2d 618 (9th Cir. decided November 24, 1964).

          Grounds which were apparent when appellant appealed from her conviction cannot thereafter be made the basis for an attack on a motion to set aside judgment and sentence. Medrano v. United States, 315 F.2d 361 (9th Cir.), cert. denied 375 U.S. 854, 84 S.Ct. 114, 11 L.Ed.2d 81 (1963).

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         The government first raises objection to jurisdiction, because Title 28 U.S.C. § 2255 affords relief only to '(a) prisoner in custody * * * claiming the right to be released.' The government cites Heflin v. United States, 358 U.S. 415, 420, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). There a majority of the Court said:

         'A motion for relief under 28 U.S.C. § 2255 is available only to attack a sentence under which a prisoner is in custody. That is what the statute says. That is what the legislative history shows. That is what federal courts * * * have unanimously concluded.'

         Cf.: United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952); McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934); Smith v. United States, 259 F.2d 125 (9th Cir. 1958); Miller v. United States, 256 F.2d 501 (9th Cir. 1958); Toliver v. United States, 249 F.2d 804 (9th Cir. 1957); Hoffman v. United States, 244 F.2d 378 (9th Cir. 1957); Williams v. United States, 236 F.2d 894 (9th Cir. 1956); Oughton v. United States, 215 F.2d 578 (9th Cir. 1954).

         Upon oral argument, we requested appellant to support with cases her position that a prisoner at freedom on bail was entitled to seek relief under 28 U.S.C. § 2255.

         Appellant's counsel supplied us the case of Shelton v. United States, 242 F.2d 101 (1957). This is a fifth circuit decision in which one judge dissented. There, the appellant was on parole, and hence was said to be serving his term because "The parole * * * does not suspend service (of sentence) or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term * * *." (Id. at 109). The majority point out the general rule is contrary to their holding, although they assert there exists a split of authority. Cf.: 39 C.J.S. Habeas Corpus § 9, pp. 439-40 (wherein it is stated an actual restraint is necessary), and Wales v. Whitney, 114 U.S. 564, 571-72, 5 S.Ct. 1050, 1053, 29 L.Ed. 277 (1885), where the Supreme Court said: 'To make a case for habeas corpus there must be actual confinement * * *.' Treating the petition for § 2255 relief as a motion in the nature of a writ of error coram nobis, relief was granted in Shelton. 5

         Appellant could have more appropriately rested her reliance on the case of Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), reversing the fourth circuit. 6 The fourth circuit had held that because the state prisoner was on parole, he was not 'in custody,' and the petition for a writ of habeas corpus was dismissed. It pointed out that the Morgan case, supra (n. 5), had ruled 'that the custody requirement implicit in habeas corpus is not essential in coram nobis, but it does not suggest that the custody requirement may be disregarded in habeas corpus or in a proceeding under § 2255.' 294 F.2d at 610. The Supreme Court in reversing pointed out the many restrictions resting on petitioner while on parole (371 U.S. at 237 and 242, 83 S.Ct. 373).

         Appellant might also have cited to us Hoptowit v. United States, 274 F.2d 936 (9th Cir. 1960), where appellant, originally in federal custody, had been conditionally released on parole (18 U.S.C. § 4203), but while on parole remained "in the legal custody and under the control of' the Parole Board,' that parole "is * * * merely 'an extension of the prison walls' * * * ", (Id., at 938) quoting Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923). The district court was therefore held to have had jurisdiction to deny plaintiff a § 2255 release.

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         Nowhere in Jones v. Cunningham, supra, does the Supreme Court go so far as to say a petitioner need not be in custody in order to invoke the Great Writ, or its substitute companion, § 2255. The opinion redefines 'custody,' and relying on immigration cases (Brownell v. Tom We Shung, 352 U.S. 180, 183, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956)) and military induction cases (371 U.S. at 240 (n. 11), 83 S.Ct. 373), holds that there existed such 'restraint' on the petitioner Jones as to place him constructively 'in custody.'

         Our own research has disclosed but one case wherein it was squarely held that a person on bail was under a sufficient custody to make him a 'prisoner' entitled to the benefit of habeas corpus or its substitute, § 2255. That is Mackenzie v. Barrett, 141 F. 964 (7th Cir. 1905). It relates to habeas corpus proceedings alone. In determining whether 'in custody' includes constructive as well as actual custody, it cites and relies primarily upon Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 21 L.Ed. 287 (1872). 7

         Whether we agree with the reasoning and conclusions in Mackenzie or not, its authority is seriously undermined, if not nullified completely, by the later seventh circuit case of United States ex rel. Walmer v. Tittemore, 61 F.2d 909 (1932). There, in a habeas corpus proceeding, the second question specifically raised was: may one who was arrested and posted bail obtain his release through a writ of habeas corpus? It was held he could not. Relying on Stallings v....

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