Arco v. Ciccone

• Decision Date: 29 April 1966
• Docket Number: No. 18248.,18248.
• Citation: 359 F.2d 796
• Parties: Joseph G. ARCO, Appellant, v. Dr. P. J. CICCONE, Director, Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

359 F.2d 796 (1966)

Joseph G. ARCO, Appellant, v. Dr. P. J. CICCONE, Director, Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.

No. 18248.

United States Court of Appeals Eighth Circuit.

April 29, 1966.

Joseph G. Arco, pro se.

F. Russell Millin, U. S. Atty., Kansas City, Mo., for appellee.

Before JOHNSEN and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

PER CURIAM.

The appeal is from an order of the District Court for the Western District of Missouri dismissing without a hearing a petition for a writ of habeas corpus. We affirm.

Appellant is under a charge in the Western District of Michigan of violating 18 U.S.C. § 1463, in having deposited in the mails a letter addressed to "L. B. Johnson — Chief, 100 Pennsylvania Avenue, Washington, D. C.", the envelope of which contained indecent, lewd, and obscene language. He is presently confined in the Medical Center for Federal Prisoners, Springfield, Missouri, on the basis of an order by the District Court for the Western District of Michigan, under 18 U.S.C.A. § 4246, committing him to the custody of the Attorney General "until he shall be mentally competent to answer the charges against him or until the pending charges against him have been disposed of according to law". The order was made after a hearing, determination and finding by the Court, under 18 U.S.C.A. § 4244, that appellant was "presently insane and mentally incompetent to understand the criminal proceedings pending against him or properly to assist in his own defense in such proceedings".

In his habeas corpus petition, appellant asserts that he is "sane" and contends that he therefore is entitled to be released from the commitment made of him and the confinement to which he is being subjected on the basis thereof. The District Court properly held that this was a question in the first instance for the court in which the charge against him was pending and by which the commitment order was made, and that his petition for habeas corpus relief was not required to be entertained since it was not shown, nor did it otherwise appear, that resort to that court, by an appropriate motion, would not provide an adequate and effective remedy for the granting of such relief, if any, to which he might be legally entitled. This is in accord with our holdings in Posey v. Attorney General of United States, 298 F.2d 604, 605 (8 Cir., 1960); Seelig v. United States, 310 F.2d 242, 244 (8 Cir., 1962); and Johnson v. Settle, 310 F.2d 349 (8 Cir., 1962), cert. den. 372 U.S. 979, 83 S.Ct. 1114, 10 L.Ed.2d 144.

What we said in Johnson v. Settle, 310 F.2d at 349, covers both the factual and the legal situation here involved:

"The District Court for the Western District of Missouri, after ordering a response to be made on the part of appellee, so that the record situation would be brought before it, denied the application for a writ without a hearing, on the ground that on the situation so shown there was no basis for appellant to ask to have a writ of habeas corpus issued. No attempt had been made by appellant to apply to his committing court for a hearing on the question of his present competency and to have that court rule upon whether in

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