United States v. Mills, 20013.

Citation430 F.2d 526
Decision Date14 August 1970
Docket NumberNo. 20013.,20013.
PartiesUNITED STATES of America, Appellee, v. George Albert MILLS, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

George Albert Mills, pro se.

Gene R. Krekel, and Dennis D. Meridith, Asst. U. S. Attys., Sioux City, Iowa, on brief for appellee.

Before MEHAFFY, HEANEY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

By petition for writ of error coram nobis under 28 U.S.C. § 1651(a), George Albert Mills seeks to overturn convictions entered in 1958 for escape and conspiracy to escape in violation of 18 U.S.C. §§ 751 and 371. The district court, Judge William C. Hanson, appointed counsel to represent Mills and, after a full hearing, denied his petition. Mills prosecutes this appeal pro se. The substantive issue concerns petitioner's mental competency on September 30, 1958, the day Mills appeared in federal court and pleaded guilty to these charges. For reasons stated below, we affirm.

At the threshold of this appeal, the government contends that Mills failed to timely file a notice of appeal within ten days following the entry of the district court's order denying him relief as is required by Fed.R. App.P. 4(b), which, as pertinent, provides:

In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from. * * * Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. (Emphasis added.)

This rule seems to cover the instant proceeding, since coram nobis is deemed a step in a criminal case. United States v. Morgan, 346 U.S. 502, 505 n. 4, 74 S.Ct. 247, 98 L.Ed. 248 (1954). The clerk of the district court received Mills' notice of appeal beyond the specified ten-day period, but within the overall forty-day period encompassed by the rule. Though the district court entered no formal order in this case, we construe its acceptance of Mills' notice of appeal outside the ten-day period as a grant of additional time for Mills to proceed with his appeal. See Johnson v. United States, 132 U.S.App.D.C. 4, 405 F.2d 1072 (1968).1

We proceed to the merits and, as a frame of reference, examine the circumstances surrounding Mills' 1958 custody and his present predicament. On August 20, 1958, Mills and an accomplice robbed the Corn Belt State Bank of Correctionville, Iowa, and, in that connection, forced the bank president to accompany one of the robbers from his residence to the bank. Police apprehended Mills and an accomplice shortly after the crime and placed them in the Woodbury County Jail at Sioux City, Iowa, under federal custody. A few days later, Mills attempted escape. As a consequence of these activities, the government prosecuted Mills for escape and for bank robbery. Mills waived indictment on all charges, four counts of bank robbery and two counts relating to the escape, and the government proceeded upon information. On September 30, 1958, Mills appeared with appointed counsel before the late Judge Henry Graven, who accepted Mills' pleas of guilty to all charges. Judge Graven sentenced the petitioner to serve a term of twenty years for robbery and, in addition, two five-year consecutive terms on the escape charges to be served consecutively with the sentence for robbery. In 1962, however, Judge Graven vacated the bank robbery conviction. He ruled the conviction invalid because the government needed to prosecute one of the bank robbery charges, which called for a possible death penalty, by indictment rather than by information. A grand jury, thereafter, indicted Mills in August, 1962, for bank robbery. No immediate trial followed. Instead, the court committed Mills to the Federal Medical Center at Springfield, Missouri, for a determination of his competency to stand trial. The Medical Center advised the court on several occasions that Mills lacked competency to assist in his defense, and the trial court specifically found to the same effect at formal hearings in 1963 and 1966. Finally, in August of 1969, the trial court determined that Mills could be tried. Mills submitted this case to a jury, which returned a verdict of guilty. The trial court again sentenced Mills to a term of twenty-years imprisonment, but granted him specified credits for time already served. During the years subsequent to 1958, Mills completed service of his prison terms for his escape and conspiracy to escape convictions. He contends that these convictions still produce or will produce adverse collateral consequences for him. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

Since the parties produced medical and psychiatric evidence on the issue of Mills' insanity as raised in the 1969 robbery trial, both sides stipulated that Judge Hanson should consider the pertinent testimony offered at the prior jury trial upon the issues presented by the coram nobis petition. Mills specifically introduced, at the coram nobis hearing, his personal testimony, certain medical reports and the testimony of Dr. Philip H. Pugh, a qualified psychiatrist from Sioux City, Iowa. The government, in turn, relied upon medical and lay testimony it had produced at the bank robbery trial to show Mills' criminal responsibility for committing the 1958 robbery, Judge Hanson's order denying Mills relief, entered following this hearing, recited in part:

Petitioner attacks the legality of a conviction and sentence entered in Criminal Case No. 4457 on September 30, 1958. Petitioner alleged that his mental condition was such at the time he was convicted and sentenced that the conviction and sentence must be set aside.
On August 25-29, 1969 petitioner was tried and convicted in this Court for an offense occurring on August 20, 1958. At this trial petitioner herein raised his mental condition during the time of the offense as a defense. Various psychiatrists testified as to petitioner\'s mental condition in 1958. The jury found that the petitioner\'s mental condition was such that at the time of the offense on August 20, 1958 he could distinguish right from wrong, he was capable of knowing the nature of the act he committed, and he did not act through irresistible impulse. This Court feels the evidence was overwhelming that petitioner\'s mental faculties were sufficient in August of 1958 and there is nothing to indicate that his mental condition was any different in September of 1958. (Emphasis added.)

Mills focuses upon the italicized sentence and claims that Judge Hanson erroneously reconsidered the same issue presented at the 1969 jury trial; that is, petitioner's competency to commit the robbery, not his competency to stand trial in September of 1958, and that the trial court erroneously relied on the jury verdict as a predicate for denying Mills relief.

Our review of the dialog at the coram nobis hearing, including comments...

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