Matysek v. United States

Decision Date15 January 1965
Docket NumberNo. 19299.,19299.
Citation339 F.2d 389
PartiesManuel Lee MATYSEK, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

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 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).

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.

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. Splain, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940 (1920), 5 Cyc.Fed.Proc. § 1890, the court said: "Before one can successfully seek a writ of habeas corpus, he must be actually restrained." Id., 61 F.2d at 910. (Emphasis added.) The Supreme Court in Stallings v. Splain, supra, stated that the rule requiring actual restraint was "well settled."8 In Sibray v. United States, 185 F. 401 (3d Cir. 1911), a case in which the return of the writ disclaimed custody because the alien had been released on $1,000 bail, the court said:

"We cannot deal with this case on its merits.
* * * * *
"Admittedly, the relator was not in the custody of the one to whom the writ was directed, nor was she restrained of her liberty, except so far as the friendly custody of her bail and the obligation thereunder, that she should be produced * * * for a further hearing, or * * * deportation * * *. The writ of habeas corpus ad subjiciendum, as its name indicates, has no other office than to require the production of the body of one in custody by the person claiming custody thereof, before a court * * * in order that the cause of such detention in custody may be inquired into. By the giving of the bail bond, the relator had, for the time being, waived the right to this writ. * * * The custody complained of must be actual and not constructive * * *. The jurisdiction of the federal courts in cases of habeas corpus, is statutory." Id. at 402-03. (Emphasis added.)

The court issuing the writ must "have a subject to act upon, which is the body of the relator brought into court by the respondent. * * * The relator, having been discharged on bail, was not restrained of her liberty, so as to be entitled to discharge on habeas corpus." Id. at 404.

In Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497 (1913), the Court said:

"Since the appeal he defendant has given bond in the district court, and has been released from arrest under the warrant issued on the indictment. He is no longer in the custody of the marshal to whom the writ is addressed, and from whose custody he seeks to be discharged. The defendant is now at liberty, and having secured the very relief which the writ of habeas corpus was intended to afford to those held under warrants issued on indictments, the appeal must be dismissed." Id. at 248, 33 S.Ct. at 241.

Accord: see Veach v. Smith, 42 F.Supp. 161 (M.D.Pa.1941).

This circuit has not been silent on the matter. In ...

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