Azzone v. United States

• Decision Date: 09 March 1965
• Docket Number: No. 17631.,17631.
• Citation: 341 F.2d 417
• Parties: John Frank AZZONE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

341 F.2d 417 (1965)

John Frank AZZONE, Appellant, v. UNITED STATES of America, Appellee.

No. 17631.

United States Court of Appeals Eighth Circuit.

February 19, 1965.

Rehearing Denied March 9, 1965.

John Azzone, pro se.

Miles W. Lord, U. S. Atty., Minneapolis, Minn., and Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., filed brief for appellee.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

PER CURIAM.

Appellant and Rocco Salvatore Lupino were tried jointly in the federal court and found guilty of violating 18 U.S. C.A. § 1073, commonly called the Fugitive Felon Act. From the judgment imposing a prison sentence of five years, they appealed. We affirmed. Lupino v. United States, 268 F.2d 799 (2 Cir. 1959), cert. denied, 361 U.S. 834, 80 S. Ct. 86, 4 L.Ed.2d 75 (1961). Azzone's first motion to vacate the sentence was denied on January 16, 1961. Azzone v. United States, D.C., 190 F.Supp. 376. He did not perfect an appeal from the order denying relief.

Having served the sentence imposed under the § 1073 violation, appellant was released from federal custody in 1962. In the meantime, however, he had been convicted by the State of Minnesota of the crime of kidnapping, and was sentenced to serve a sentence of 0-40 years.¹ Upon his release from the federal prison, appellant was taken into custody by the Minnesota authorities, and he is now serving his sentence under the Minnesota conviction.

In November 1963, appellant filed the present § 2255 motion to vacate the § 1073 sentence. The District Court, Judge Devitt, denied the motion on the ground that § 2255 relief is limited to "those persons who are serving a federal term of incarceration"; and that since appellant had been discharged from federal custody the issues insofar as they affect the validity of the federal conviction, are moot. Azzone v. United States, 222 F.Supp. p. 1022. We granted appellant's application for leave to appeal in forma pauperis upon the questions: (1) whether, beyond the District Court's disposition of appellant's motion to vacate the judgment on the basis of § 2255, the motion should also have been treated and considered as one for a writ of error coram nobis; and (2) whether, if the motion should have been so treated and considered, the facts and situation alleged were such as to have entitled appellant to a hearing thereon.

Preliminarily, we concur in the trial court's view and holding that inasmuch as appellant has been released from custody under the sentence which he is attacking, relief is not available to him under 28 U.S.C.A. § 2255. See in addition to the cases cited in the District Court's opinion (222 F.Supp. at page 1022). Heflin v. United States, 358 U.S. 415, 420, 79 S.Ct. 451, 3 L.Ed. 2d 407 (1959) and Perry v. United States, 314 F.2d 52, 53 (8 Cir.1963).

Passing to the questions for determination, United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) stands for the proposition that by a proceeding in the nature of coram nobis, the convicted party may proceed in a federal district court to have set aside his conviction and sentence in that court for a federal offense, though he had served the full time for which he had been sentenced. In Morgan, the Court held that regardless of how the papers are labeled, "federal courts should act in doing justice if the record makes plain a right to relief". 346 U.S. at page 502, 74 S.Ct. at page 249. But the Court added the caveat: "Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice", and that the writ is designed to correct errors "`of the most fundamental character'". 346 U.S. pp. 511, 512, 74 S.Ct. pp. 252, 253.

Appellant's motive for the instant proceeding does not appear from his motion or brief. We suspect that if successful, he would attempt to procure some relief from the Minnesota conviction and sentence. In any event, the fact that appellant has served his federal sentence does not bar his right to challenge the legality of the trial and conviction. Morgan, supra, teaches that "although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected". 346 U.S. pp. 512, 513, 74 S.Ct. p. 253. See also United States v. Garguilo, 324 F.2d 795, 796 (2 Cir. 1963). Inasmuch as any relief to which appellant may be entitled is not available through § 2255 or habeas corpus proceedings, we believe that appellant's motion is entitled to be treated as an application for a writ of error coram nobis, and accordingly pass to the question whether the allegations relied upon are such as to merit a hearing thereon.

Appellant's allegations, liberally viewed, present these grounds for relief: (1) that he has newly discovered evidence which proves that he did not violate 18 U.S.C.A. § 1073; (2) that the prosecution was predicated upon notoriety of appellant and Lupino, and induced by the political aspirations of the United States Attorney; (3) that the Government utilized an informer who was an accomplice and whose testimony was false and known to be by the prosecutor; (4) the instructions to the jury were prejudicial; (5) the statute under which he was prosecuted is unconstitutional.

Contention No. 1. Appellant asserts that he left the State of Minnesota and went to South Carolina in response to the terms of his appearance bond which he had given in connection with an offense he had committed in South Carolina. From this premise appellant argues that intent, an essential element of the federal offense, was lacking. All essential elements of the offense, including intent were submitted to the jury by proper instructions. The question whether appellant fled from Minnesota with intent to avoid prosecution was considered and resolved by us in the appeal from the conviction, 268 F.2d 799, 801, 802 and appellant is not entitled to another review of that issue.

Contention No. 2 is...