Baker v. United States

• Decision Date: 28 July 1964
• Docket Number: No. 17579.,17579.
• Citation: 334 F.2d 444
• Parties: James C. BAKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

334 F.2d 444 (1964)

James C. BAKER, Appellant, v. UNITED STATES of America, Appellee.

No. 17579.

United States Court of Appeals Eighth Circuit.

July 28, 1964.

James C. Baker, pro se.

F. Russell Millin, U. S. Atty., and Bruce C. Houdek, Asst. U. S. Atty., Kansas City, Mo., submitted printed brief without oral argument, for appellee.

Before VOGEL, MATTHES, and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

Appellant, a federal prisoner, appeals from an order denying his motion (§ 2255, Title 28 U.S.C.A.) to vacate the judgment and sentences imposed for armed robbery of a federally-insured bank (18 U.S.C.A. § 2113(a), (d)) and conspiracy in violation of 18 U.S.C.A. § 371.

It was on December 13, 1962 that appellant, with court-appointed counsel, appeared in the sentencing court and executed a written "waiver of indictment and consent to the filing of an information" charging the above offenses. Thereafter, appellant entered a plea of guilty to both such charges and was sentenced to the custody of the Attorney General for a period of twenty (20) years for the bank robbery offense, and five (5) years for conspiracy, to be served concurrently. On that same day appellant was transported to the Federal Penitentiary at Leavenworth, Kansas, (where he is now confined) to commence service of his sentences.

Five and one-half months later (May 20, 1963) appellant filed a verified § 2255 motion, alleging that he "was psychotic and schizophrenic before, during and after imposition of sentence"; so much so, that "he did not know nor can (he) remember whether or not he violated the laws" with which he was charged, or having "committed said offense; that he (did) not intelligently waive any of his constitutional rights and was unable to assist counsel at the time of trial, because of his insanity," etc. At the same time, appellant filed a "Motion Requesting The Honorable Richard M. Duncan to Disqualify Himself from Passing Upon the Merits of (his) Motion to Vacate Sentence," and requesting the Judge to "consent to appear as a witness for" appellant at the hearing on such motion.¹ That was denied.

In due course, counsel for the Government filed suggestions in opposition to appellant's motion, ante. Thereafter, on petition of Government's counsel, a writ of habeas corpus and testificandum was issued and appellant appeared in his sentencing court on July 1, 1963, at the initial hearing held on his § 2255 motion. At that hearing, appellant was without counsel. After informing the Court that he did not desire to testify in support of his motion — the Government proceeded to introduce evidence in refutation of the allegations made in appellant's verified motion. At the conclusion of that hearing, appellant informed the Court that he desired to call certain witnesses to give testimony in his behalf, but because of his confinement in the penitentiary he had not had any opportunity to have such persons subpoenaed. Whereupon, appellant was directed to make known, which he did, the names of all parties whom he desired to call as witnesses in his behalf, so that subpoenas could be issued for their appearance at a continued hearing on his motion which would be, and was, held on August 12, 1963.

At that continued hearing, appellant was again present in the District Court. The eight witnesses he had requested to be summoned were present and examined by appellant, the Court, and Counsel for the Government. At the conclusion of that hearing, ruling on appellant's § 2255 motion was taken under advisement. On January 6, 1964, District Judge Duncan by memorandum order (41 pages, not published) overruled appellant's "Motion to Vacate Sentence." In that order a review in detail was made as to all factual matters established at the two hearings held on appellant's motion, as well as those shown of record relating to appellant's commission of the crimes with which he was charged; his appearances in Court — with counsel —; the circumstances surrounding his execution of waiver of indictment and consent to the filing of an information; his entry of a plea of guilty, and sentence subsequently imposed. Such matter appearing in great detail, no useful purpose would be served by our making any abridgement thereof. Any casual perusal of the record before us will reveal that there is no merit to appellant's contentions that — "the trial court's order does not set out the findings of facts" on which appellant's § 2255 motion was ruled; — also his assertion that error exists because Judge Duncan did not "have appellant examined by a psychiatrist"; — and that "evidence of (appellant's) insanity" at the time of entering his plea of guilty and at post court appearances "was compelling" — are frivolous. Hence, the only matters we need to be concerned with in this appeal are appellant's assignments of error questioning whether there is any responsible evidence in this record establishing with any reasonable degree of probability mental incompetency on his part to comprehend and factually understand the nature of the charges made against him at the time of his appearance in the District Court when entering his plea of guilty; his ability to then rationally consult with court-appointed counsel in relation to such charges; and whether his pleas of guilty were understandingly and voluntarily entered. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

It was on November 28, 1962, that petitioner and three other persons were arrested by State Police Officers, at a road-block, in an automobile previously publicized over radio as the "bandits' car" in possession of two guns and a paper sack containing all the money taken in the robbery of the federally-insured bank. There is no contention here made as to the validity of his arrest, nor that the written confessions subsequently made and signed by appellant and his companions on the same day were other than voluntary. Thereafter, appellant and two of his companions were taken before a United States Commissioner where they waived hearing on the charges then made and filed against them. Consequently, the three were bound over to the District Court for trial on such charges. When appellant appeared in the District Court he was represented by court-appointed counsel. His two companions were represented by retained counsel. Appellant had consulted with his court-appointed counsel prior to his appearance in the District Court. Thereafter, in open court, he and his two companions, all appearing with counsel, executed written waivers of indictment. After arraignment, entry of pleas of guilty to the charges made against them and allocation was granted, they were duly sentenced.

As above noted, five and one-half months later appellant filed his § 2255 motion, in which factual matter was formally stated (with quotations from numerous authorities) to which appellant made verification under oath.² At the first hearing held on said motion, evidence was adduced by the Government as to matter appearing in Veterans Administration records, relating to appellant's confinement and treatment at the Veterans Administration Hospital located in Kansas City, Missouri; also, testimony of the physician who attended appellant during his confinement in such hospital; and likewise, testimony of the Chief Medical Officer of the United States Public Health Service, assigned to Leavenworth Penitentiary pursuant to § 4241, Title 18 U.S.C.A. Counsel appointed to represent appellant and who was present at the time of his arraignment, waiver of indictment, and sentence, also testified at that hearing; as did two members of the Federal Bureau of Investigation.

It was at the conclusion of the hearing held on July 1, 1963, that petitioner stated to the Court that as a result of his confinement in the Leavenworth Penitentiary he was unable to subpoena witnesses whom he desired to testify on his behalf in support of the allegations of his motion. Thereupon, Judge Duncan made inquiry of appellant: "Whom do you want, what witnesses do you want?" It was then that appellant was instructed to give the names of all persons he desired to call as witnesses for appearance in the District Court on August 12, 1963, at a continued hearing on his § 2255 motion. On the last-mentioned date, eight (8) lay witnesses (friends and relatives) named by appellant were duly subpoenaed, appeared, and gave testimony. Though not sworn as a witness, because of appellant's prior assertion that he did not desire to testify, it is apparent from the record that he was given great latitude to make any factual statements he desired to, at both the above-referred-to hearings.

In the interim between the hearings held on appellant's motion, he mailed to the District Court a second application for appointment of "counsel to represent him at the hearing set for the 12th day of August, 1963." By formal order entered of record, such request was denied.³ It is now asserted before us: "The lower court erred in failing to appoint counsel for appellant to aid him in asserting all his factual bases of alleged incompetency."

There is no merit to that assignment of error. As said in United States v. Hayman, 342 U.S. 205, 222, 72 S.Ct. 263, 274, 96 L.Ed. 232: "Unlike the criminal trial where the guilt of the defendant is in issue * * * a proceeding under Section 2255 is an independent and collateral inquiry into the validity of the conviction." The remedy provided by that statute "is a special civil rather than a criminal proceeding even though it attacks a criminal conviction." Taylor v. United States, 229 F.2d 826, 832 (8 Cir. 1956). See also, ...