Bean v. U.S.
| Decision Date | 27 May 1982 |
| Docket Number | No. 80-1403,80-1403 |
| Citation | 679 F.2d 683 |
| Parties | Louis John BEAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Louis John Bean, pro se.
Virginia Dill McCarty, U. S. Atty., Indianapolis, Ind., for respondent-appellee.
Before CUMMINGS, Chief Judge, and SPRECHER * and POSNER, Circuit Judges.
On May 5, 1975, the appellant, Louis Bean, was arrested following a hot pursuit by a citizen and by police from the scene of a bank robbery. He was found in a van hiding under a pile of furniture covers, dressed in two sets of clothing, and wearing surgical gloves on his hands, one of which was clutching a gun. He told the FBI: "Believe it or not, this is my first bank robbery." Elijah Caudill and John DeJarnette were arrested for the same offense. Caudill pleaded guilty; DeJarnette was committed to a mental institution; Bean stood trial, was found guilty, and was sentenced to 25 years imprisonment.
This appeal is from the denial of Bean's second motion under 28 U.S.C. § 2255, filed August 3, 1979. It contains just one claim that requires discussion: that he is entitled to a new trial on the ground of newly discovered evidence. Attached to the motion are affidavits from four prison inmates. One, Caudill's, states that the third man in the robbery was not Bean (Caudill also so testified at Bean's trial) but (this is new) Leon Johnson. The second affidavit is Leon Johnson's and states that it was indeed he, not Bean, who joined with Caudill and DeJarnette in the robbery. The other two affidavits are from fellow prisoners of Johnson who say that he told them he was the third man. The district judge found all four affidavits incredible in light of the circumstances of Bean's arrest, and denied the motion.
Rule 33 of the Federal Rules of Criminal Procedure provides that a motion for a new trial on the ground of newly discovered evidence is untimely unless filed within two years of the final judgment. Bean's motion was untimely if treated as a Rule 33 motion, and there is a question whether he can circumvent this limitation by using section 2255, which has no time limits. The question is unsettled. See Pelegrina v. United States, 601 F.2d 18, 19 n.2 (1st Cir. 1979), collecting the older authorities; for recent and contrasting views see Lindhorst v. United States, 658 F.2d 598 (8th Cir. 1981); Brach v. United States, 542 F.2d 4, 8 (2d Cir. 1976); United States v. Kearney, 659 F.2d 1203, 1206 (D.C.Cir.1981) (MacKinnon, J., dissenting). It has not been decided in this circuit. United States v. Robinson, 585 F.2d 274 (7th Cir. 1978) (en banc), considered on the merits as a section 2255 motion an untimely motion for a new trial on the ground of newly discovered evidence, but did not discuss the question-which for all that appears had not been raised-whether it was a proper section 2255 motion.
Since the lack of merit of Bean's motion is so plain, we need not decide the question (it is not one of subject-matter jurisdiction) in this case. But we want to make clear to the district judges in this circuit that it is an open question, to be decided by them in the first instance in an appropriate case. The two-year limitation in Rule 33 serves an important purpose: passage of time facilitates the fabrication of evidence and makes retrials progressively less reliable. More fundamentally, there is a question whether the discovery of new evidence that is unrelated to a federal claim can open a judgment to collateral attack. Section 2255 is, of course, a substitute for habeas corpus, United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979); and a criminal sentence can be attacked in a habeas corpus proceeding only if the sentencing court lacked jurisdiction to impose it or committed a constitutional error that made the...
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