Bateman v. United States

• Decision Date: 15 April 1960
• Docket Number: No. 16362.,16362.
• Citation: 277 F.2d 65
• Parties: Henry BATEMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F.2d 65 (1960)

Henry BATEMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 16362.

United States Court of Appeals Eighth Circuit.

April 15, 1960.

Henry Bateman, pro se.

Osro Cobb, U. S. Atty., Little Rock, Ark., and Ralph M. Sloan, Asst. U. S. Atty., Little Rock, Arkansas, for appellee.

Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.

VOGEL, Circuit Judge.

This appeal arises out of the District Court's denial of appellant's petition for a writ of error coram nobis. Appellant was arrested in Arkansas on October 15, 1958, pursuant to a warrant issued in Florida on a complaint alleging the violation of 18 U.S.C.A. § 2312. In default of bail, he was held in the Pulaski County jail. While confined he and others unsuccessfully attempted to escape, for which act he was charged with violating 18 U.S.C.A. § 751. On December 9, 1958, he pleaded not guilty to that charge. Subsequently the complaint under 18 U.S.C.A. § 2312 was transferred to the Eastern District of Arkansas. Appellant pleaded guilty thereon and was sentenced by Judge Beck, sitting by assignment, to a term of imprisonment of one year and one day commencing January 23, 1959.

On April 7, 1959, appellant was tried for the alleged violation of 18 U.S.C.A. § 751 and was found guilty. Prior to sentencing, Judge Henley, the presiding judge, was advised of the sentence appellant was then serving and also of the fact that he was a fugitive from a North Carolina state sentence which required his confinement there for a period of 22 or 23 months. The trial judge then stated:

"It is the judgment of the Court that on the indictment and verdict of the jury the defendant shall be remanded to the custody of the Attorney General to be by him imprisoned in an institution of the Attorney General\'s choice for a period of twenty-six months to run concurrently with the sentences he is now serving." (Emphasis supplied.)

The commitment, dated April 9, 1959, however, provided that the 26-month sentence was to run concurrently "with the sentence said defendant is now serving in the United States Penitentiary". In explanation thereof, the trial judge stated to the appellant in a letter of April 22, 1959:

"Now, in sentencing you I stated that your sentence was to run concurrently with both your existing federal sentence and with the sentence that you have to serve in North Carolina. Upon reflection, however, I am convinced that I lacked authority to make your sentence run concurrently with the North Carolina sentence, which you are not yet serving, and that the portion of your sentence providing that it should so run was surplusage. Hence, the sentence that I imposed upon you, which was extremely lenient, will run concurrently with your federal sentence only."

On August 3, 1959, the appellant petitioned the District Court for a writ of error coram nobis, alleging that it was the intention of the trial court in pronouncing sentence for the violation of 18 U.S.C.A. § 751 that he be not imprisoned therefor beyond the duration of his confinement for the violation of 18 U.S.C.A. § 2312 and the pending North Carolina imprisonment. He then asked that the court alter the length of the modified sentence so that its effect would conform to that intent. The District Court denied the petition in a memorandum letter-opinion, stating:

"As I wrote you on April 22, it is quite true that when I pronounced sentence upon you in this case, I stated that said sentence was to run concurrently with both your existing State and federal sentences, but upon reflection I became convinced that I had no authority to make your sentence run concurrently with a State sentence that you had not then begun to serve, and that the most that I could do was to make your sentence run concurrently with the federal sentence that you were currently serving, and the formal commitment which I signed so provided.

"Being still of the opinion that I had no authority to make your sentence run concurrently with the North Carolina sentence, I am today entering an order denying your petition, a copy of which order is enclosed herewith. If you desire to appeal from this order, I will permit you to do so in forma pauperis."

This appeal followed.

The Supreme Court in United States v. Mayer, 1914, 235 U.S. 55, 69, 35 S.Ct. 16, 19, 59 L.Ed. 129, discussed the use of the common-law writ of error coram nobis for the correction of certain errors of fact in criminal proceedings and explained that:

"This jurisdiction was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already stated, in those cases where the errors were of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid." (Emphasis supplied.)

Subsequently, in United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, the court referred to that test for the application of the writ and held that that remedy continued to be available in the federal courts under 28 U.S. C.A. § 1651(a), despite the intervening passage of 28 U.S.C.A. § 2255 and Rule 60(b), F.R.Civ.P., 28 U.S.C.A. In so doing, however, the court emphasized that:

"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." 346 U.S. at page 511, 74 S.Ct. at page 252.

Thus, in Moon v. United States, 1959, 106 U.S.App.D.C. 301, 272 F.2d 530, 532, 533, the court affirmed the District Court's denial of a petition for a writ of error coram nobis on the ground that the litigant failed "to present a case so strong that `action to achieve justice' is compelled", and that the claimed errors did "not show a lack of fair trial for the sort of miscarriage of justice which might call for immediate relief." Similarly, in Dunn v. United States, 6 Cir., 1956, 238 F.2d 908, 911, appellant's petition was denied because the errors complained of were not such as to render the entire proceeding itself irregular and invalid. See, also, United States v. Gardzielewski, 7 Cir., 1943, 135 F.2d 271; United States v. Baker, D.C.E.D. Ark.1958, 158 F.Supp. 842, 848. Because of this limitation on the use of the writ, no court has applied it to the correction of errors not growing out of the proceeding leading to a criminal conviction but rather arising only from the sentencing thereon. Additionally, decisions of two state courts have affirmatively determined that the common-law writ of error coram nobis is inapposite to any alleged errors of that latter character.

In State v. Campbell, Mo., 1957, 307 S.W.2d 486, the defendant was sentenced to two years' imprisonment with the sentence ordered to run concurrently with a life sentence he was then serving. The court subsequently determined that it was without authority to make the sentences concurrent and therefore ordered that they run consecutively. The defendant then petitioned for a writ of error coram nobis on the grounds that the two-year sentence as amended was in excess of that intended by the court. His petition was denied because:

"In seeking a writ of error coram nobis, the defendant has mistaken his remedy. Such a writ lies for some unknown fact, going to the right of the court to proceed, which entirely defeats the power of the court to attain a valid result in the proceedings. Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S.W.2d 435, 439(8). Here there is no allegation of an unknown fact going to the court\'s jurisdiction. The facts alleged are disclosed on the face of the record; the error, if any, is one of law and the writ will not lie to correct an error of law. State v. Wallace, 209 Mo. 358, 108 S.W. 542, 543(1); City of St. Louis v. Franklin Bank, 351 Mo. 688, 173 S.W.2d 837, 846(11)." 307 S.W.2d at pages 489-490.

Similarly, in People v. Lyle, 1957, 21 Cal.App.2d 132, 68 P.2d 378, the judgment sentencing defendant recited his three previous convictions but stated that the court, nonetheless, would not adjudge him an habitual criminal. However, subsequently the Parole Board did so deem the defendant under a statute requiring that result. He then petitioned the court for a writ of error coram nobis on the ground that the legal effect of the judgment departed from the court's intention. In affirming the lower court's denial of the writ, the Court of Appeals stated:

"Under our statutory forms of procedure, the writ of coram nobis is available to a defendant in a criminal proceeding only when there has been a denial of a trial upon the merits, or in other words, when there has been no trial at all. * * In the instant case there is no claim that the plea entered by appellant was extorted from him by duress of any character or that the proceedings which resulted in his plea of guilt and his admission of three prior felony convictions were affected by any outside force. So far as appears from the record, appellant

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