Bell v. United States, WC6532.

• Decision Date: 03 August 1966
• Docket Number: No. WC6532.,WC6532.
• Citation: 265 F. Supp. 311
• Parties: Coleman Harper BELL, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Mississippi

265 F. Supp. 311

Coleman Harper BELL, Petitioner, v. UNITED STATES of America, Respondent.

No. WC6532.

United States District Court N. D. Mississippi, W. D.

August 3, 1966.

Coleman Harper Bell, pro se.

H. M. Ray, U. S. Atty., and E. Grady Jolly, Jr., Asst. U. S. Atty., Oxford, Miss., for the United States.

MEMORANDUM OPINION

CLAYTON, Chief Judge.

Petitioner, Coleman Harper Bell, has moved pursuant to 28 U.S.C. § 2255 to vacate judgments of conviction entered in this court. After the motion was filed, an order was entered requiring petitioner to file within a prescribed period thereafter all other grounds which he might have or claim to have, cognizable under section 2255, attacking his convictions, or else have such grounds forever barred. Petitioner filed certain additional materials, whereupon the court ordered the respondent to show cause why the motion should not be granted. The United States' answer to that order put in issue the factual allegations of the motion to vacate and a full hearing was held, at which petitioner was present. At the conclusion of the hearing, petitioner was granted leave to supplement the evidentiary record with certain documents which he later obtained with the assistance and cooperation of the United States Attorney. When the record was thus completed, petitioner submitted a memorandum of law, to which the United States replied, and this cause is now before the court on the petitioner's motion to vacate, as supplemented, the evidence received at the hearing and later, the opposing memorandum briefs, and the files and records of the court.

The challenged convictions rest upon the petitioner's pleas of guilty to each count of an eight count information (filed after waiver of indictment) charging violations of the Dyer Act, 18 U.S.C. § 2312. The arraignment, at which formal waivers of counsel and of indictment were executed and the pleas were entered, was held on 2 June, 1965. Petitioner was committed by the court to the custody of the Attorney General for study and observation, pursuant to 18 U.S.C. § 4208(b) and on 3 September, 1965, after receipt of the report of study, separate sentences of imprisonment were imposed as to each count, i. e., five years on count one; three years on count two, to run consecutively to the sentence imposed on count one; and five years on each remaining count, all to run concurrently with the sentence imposed on count one.

Immediately after imposition of sentence, petitioner filed a notice of appeal. Although he neither paid filing or docketing fees, nor requested leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915, the filing of the notice was effective to vest jurisdiction in the court of appeals. Rule 37(a) (1), F.R.Crim.P. Petitioner apparently took no further steps to prosecute the appeal; no record on appeal was ever filed and the appeal was never docketed in the court of appeals. While it is thus obvious at this date that petitioner has abandoned the appeal, no formal action had been taken in this regard prior to the filing of the motion to vacate and at the present time the appeal remains pending. Of course, as the record shows, no claim of error was ever presented to this court upon a denial of which an appeal might be predicated. These circumstances are stronger than those in Black v. United States, 269 F.2d 38 (9th Cir. 1959), in which the court of appeals treated the filing of the motion to vacate as an abandonment of the appeal and sustained jurisdiction of the section 2255 proceeding.

The pendency of the appeal from the original conviction was brought to the court's attention by a letter from an Assistant United States Attorney to the court and to the petitioner. That letter advised that the government did not wish to interpose a jurisdictional objection at this point and that, to clarify the jurisdictional issue, the government was concurrently filing a motion to dismiss that appeal. A motion to vacate will not be entertained during the pendency of an appeal from the judgment under attack, since disposition of the appeal may make the motion unnecessary. 4 Barron Federal Practice and Procedure (Wright Ed. 1964 Supp.) § 2306, p. 353; Bilderback v. United States, 159 F.Supp. 713 (M.D.Ga.1958). While the authority of Black v. United States, supra, might well serve to sustain a final order in this cause against a jurisdictional attack, the more cautious—and more pragmatic—course would seem to be to postpone entry of such an order until after the court of appeals acts upon the government's motion to dismiss the original appeal. That course will be followed here.

Petitioner alleged that he was denied the right to counsel, that his waiver of counsel and pleas of guilty were coerced by government officials, that he was mentally incompetent at the time of the waiver of counsel and pleas of guilty and that he was denied due process because of the government's failure to move, and the court's failure to order, a pre-trial inquiry into petitioner's mental competency pursuant to 18 U.S.C. § 4244. The supporting allegations described a purported suicide attempt at the time of arrest and a prior history of mental illness and treatment therefor. It was alleged that various federal officers in whose custody he was held refused to allow petitioner to call an attorney or a member of his family; that he was held in solitary confinement for two months between arrest and arraignment; that necessary medicines for a stomach disorder were denied to him, which deprivation, coupled with incompatibility between the jail menu and a medically prescribed diet, resulted in a loss of thirty pounds in two months; and that he was not allowed to shave for some thirty-seven days because he was thought to be mentally incompetent and thus that he might harm himself if allowed to have shaving gear.

Accusations were made against a probation officer of this court, against special agents of the FBI and against the United States Attorney that each of them made threats and promises (which were allegedly broken) to induce his pleas of guilty and waiver of counsel. The probation officer was charged with promising to communicate with a certain attorney on petitioner's behalf, with promising to secure hospitalization for petitioner if he pled guilty, with threatening that petitioner would be held in the county jail for an additional year before trial unless he pled guilty, and with making similar threats and promises to petitioner's mother. He was also accused of promising that if petitioner would name others involved in an auto theft ring, petitioner and his family would be protected. The FBI agents allegedly threatened that petitioner would be charged with a capital crime in another state unless he gave them an incriminating statement and promised that if he would name others involved in his crimes, he and his family would be protected and the agents would "make it very light on movant in Court." Because of the threats, petitioner alleged, he made an incriminating statement. The United States Attorney allegedly told petitioner that he did not need counsel; that if he did not plead guilty he would be held over at least two more terms of court before trial; and that if he insisted on trial, the statement given to the FBI agents would insure maximum sentences. Because of these threats and promises and the conditions under which he had been confined, the motion concludes, petitioner waived counsel and entered pleas of guilty.

The burden of proof in a proceeding under section 2255 is upon the petitioner. Estep v. United States, 251 F.2d 579 (5th Cir. 1958); Smith v. United States, 252 F.2d 369 (5th Cir. 1958); Twining v. United States, 321 F.2d 432 (5th Cir. 1963); Nash v. United States, 342 F.2d 366 (5th Cir. 1965). Petitioner was given a full opportunity to present all of his proof, with only rare imposition of the limitations ordinarily prescribed by the rules of evidence. Fifteen witnesses were called by the petitioner and one documentary exhibit was introduced by him in his endeavor to meet his burden of proof. As noted above, he was also allowed to file three documents as exhibits after the hearing. Finally, he attached copies of two letters to his brief on the merits which have been considered by the court although they are not properly in evidence.

Petitioner's witnesses, relatives, friends and state and federal officers who had contact with him during the relevant period, did not support the material allegations of the motion to vacate. As the hearing progressed and the testimony of witness after witness refuted those allegations, it became increasingly evident that only one witness was in a position to give testimony supporting the motion to vacate—petitioner himself. At several points in the hearing, the court explained petitioner's right to testify on his own behalf. Notwithstanding the clear invitation from the court and the obvious necessity from his point of view, petitioner declined to take the stand either on his case or in rebuttal. The only information which the court could acquire about petitioner from petitioner himself was that obtained by observing his demeanor and actions as he prosecuted his case. Such observations would be of value only if they suggested that, at least at the time of the hearing, petitioner suffered from some mental disorder so that, in an abundance of caution, further inquiry by experts might be ordered. However, at the time of the hearing, petitioner was obviously well oriented, alert, and perhaps more than normally intelligent.

Petitioner was arrested on 1 April, 1965, by local police in Jackson, Mississippi, on auto theft charges. He consumed an overdose of barbiturates which was sufficient to induce unconsciousness and the arresting officers had him placed in a hospital. On 3 April he regained consciousness and on 4 April he was sufficiently recovered to be taken from the hospital in a wheel chair and to be...