Sosa v. U.S.

Citation550 F.2d 244
Decision Date08 April 1977
Docket NumberNo. 76-1371,76-1371
PartiesSantos Angel SOSA, Jr., and Rolando Sosa, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Edward B. McDonough, Jr., U. S. Atty., James R. Gough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for defendant-appellant.

Roberto J. Yzaguirre, R. Knox Jones, McAllen, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

On the strength of a "chekar" signal alone, Border Patrol agents stopped the Sosa brothers' car near Hebbronville, Texas. The agents then smelled marijuana in the car. A subsequent search confirmed that olfactory suspicion: some 71 pounds of marijuana were discovered. The trial court denied a motion to prevent use of the contraband as evidence against the Sosas, and found them guilty of possession of a controlled substance with intent to distribute it in violation of 21 U.S.C. § 841(a).

The Sosas were sentenced on June 26, 1975. They filed a notice of appeal to this Court the same day and timely met all ancillary requirements. The Supreme Court decided the case of United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), on June 30, 1975. On August 8, 1975, this Court in an unpublished opinion interpreted Brignoni-Ponce as requiring the reversal on direct appeal of convictions based on evidence obtained by use of the Hebbronville chekar device in circumstances identical to the Sosas' case. United States v. Peralez, 517 F.2d 1402 (5th Cir. 1975), petitions for rehearing and rehearing en banc denied sub nom. United States v. Martinez, 526 F.2d 954 (5th Cir. 1976).

On September 23, 1975, the Sosas moved this Court to dismiss their direct appeal. The motion specified that the dismissal was requested for the purpose of permitting the trial court to act on a section 2255 motion to vacate judgment and sentence in light of our Peralez decision. 1 The Clerk of the Court, in accordance with FRAP 42 and as required by our Local Rule 9, entered an order of dismissal. The Sosas then filed a section 2255 motion in the sentencing court. The district court, after notifying the Government and receiving an answer which petitioners allege raised questions of law only, summarily granted the section 2255 motion. The Government now contends that the district court's order should be reversed because (1) the Sosas "deliberately bypassed" appellate review, thereby forfeiting their right to seek section 2255 relief; (2) the fourth amendment claim that the Sosas seek to raise is not cognizable in section 2255 proceedings; and (3) the district court granted the motion without holding a hearing.

I. SURROGATE APPEAL

Although section 2255 proclaims that a "motion for such relief may be made at any time," it is a judicial commonplace that "the writ of habeas corpus will not be allowed to do service for an appeal," Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947); accord, e. g., Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 63 S.Ct. 236, 87 L.Ed. 268 (1942). If the rule against employing habeas as a surrogate for appeal meant only that a petition should not normally be entertained while direct review is still available, application of the rule would occasion little difficulty. The rule, however, expresses substantive as well as procedural policies: in certain circumstances failure to pursue a direct appeal will be held to tilt the equities against a habeas petitioner and prevent him from obtaining collateral relief, e. g., Hill v. United States, 368 U.S. 424, 428-29, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (petitioner had not appealed trial court's failure to afford him opportunity to make statement in his own behalf at sentencing); Sunal v. Large, 332 U.S. 174, 177-181, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947) (petitioners were part of concerted test case effort in which some judgments were appealed while others were not).

In the instant case, the Sosa brothers dismissed their direct appeal and sought section 2255 relief. The Government insists that this action constituted a "deliberate bypass" of direct review which forecloses collateral attack. But the Government's use of the rule that habeas will not be allowed to do service for an appeal is too pat. The Government fails to show how and why the Sosas have so abused the privilege of the Great Writ as to preclude them from obtaining relief to which they are obviously otherwise entitled.

The term "deliberate bypass" is not self-executing; it depends upon legal conclusion. It encapsulates an equitable doctrine that took form as early as Ex Parte Kearney, 20 U.S. (7 Wheat.) 37, 42-43, 5 L.Ed. 391 (1822); Matter of Gregory, 219 U.S. 210, 213, 31 S.Ct. 143, 55 L.Ed. 184 (1911). The term itself entered the habeas corpus lexicon after Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963):

"Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. . . . (H) abeas corpus has traditionally been regarded as governed by equitable principles. Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks. . . . We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies."

372 U.S. at 438, 83 S.Ct. at 848 (citation omitted).

Although the Supreme Court enforced the general rule against surrogate appeals in Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), the Court was careful to preserve the not inconsiderable number of exceptions to the rule, see 332 U.S. at 178-181 & nn. 6-13, 67 S.Ct. 1588, when "the writ has . . . been entertained either without consideration of the adequacy of relief by the appellate route or where an appeal would have afforded an adequate remedy", 332 U.S. at 178, 67 S.Ct. at 1591. The Court's catalogue of exceptions shows that the archetypal case for the application of the rule precluding collateral attack is when direct appeal has been foregone as a tactical maneuver. See 332 U.S. at 180-182, 67 S.Ct. 1588.

We thus begin with the proposition recognized in Sunal and respected in subsequent decisions, that failure to appeal does not, by itself, require a habeas court to deny the petition. "(T)he question rather is whether the case is one in which refusal to exercise that power (to adjudicate the merits of constitutional claims on habeas is) appropriate," Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1071 n. 3, 22 L.Ed.2d 227 (1969), for the rule against surrogate appeals "is not one defining power but one which relates to the appropriate exercise of power", Bowen v. Johnston,306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939). Our own jurisprudence traces a similar course, and consistently returns to the holding that the motivation or reason for the failure to appeal, and not the mere datum that an appeal was not taken or completed, determines whether a section 2255 motion ought to be entertained. 2 The rule against surrogate appeals is not, therefore, a strict jurisdictional requirement. Rather, it is a formulation of jurisprudential considerations that may vary as the equities of a case vary. We believe the equities weigh heavily in the Sosas' favor.

Our consideration of the Sosas' claim is not uninfluenced by the fact that our own procedures may have contributed to the problem. The motion for dismissal clearly states the Sosas' intention to dismiss the direct appeal in order to seek section 2255 relief. If we had specifically authorized the dismissal as a prelude to section 2255 proceedings, Rule 42(b) of the Federal Rules of Appellate Procedure, which provides that an "appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court", would conclude the matter. However, our own Local Rule 9(a) makes perfunctory our approval of motions for voluntary dismissal. 3 Thus, although we cannot be said to have countenanced the Sosas' action, we are reluctant to limit the exercise of an essentially equitable authority where the circumstances so visibly show the Sosas' good faith and our own indirect responsibility for their present predicament.

The Government reads several of our prior decisions as supporting its characterization of the Sosas' actions as a deliberate bypass. A careful analysis of those cases, however, leads to the opposite conclusion. In Larson v. United States, 275 F.2d 673 (5th Cir. 1960), the petitioner had not appealed from a conviction and life sentence in a murder trial. His codefendant, who had been sentenced to die, appealed and eventually won retrial in circumstances that "reduced almost to zero" the "risk of a death sentence" for Larson, 275 F.2d at 675. We affirmed the district court's denial of Larson's subsequent section 2255 motion on the ground that his failure to appeal was part of a "considered strategy not to jeopardize his life by running the risk of a new trial," 275 F.2d at 674; see 275 F.2d at 679-80.

Equally wayward is the Government's citation of Montgomery v. Hopper, 488 F.2d 877 (5th Cir. 1973), for in that case we pointed out that not all intentional failures to appeal can be labeled as the "deliberate bypass" which also carries the prisoner past collateral attack. The Court explained:

"The term 'deliberate bypass' is one of art. . . . The circumstances revealed by this record fall short of authorizing the conclusion that (the petitio...

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