Bistram v. United States

• Decision Date: 23 March 1959
• Docket Number: Crim. No. 7885.
• Citation: 171 F. Supp. 258
• Parties: Carl Harvey BISTRAM, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of South Dakota

171 F. Supp. 258

Carl Harvey BISTRAM, Petitioner, v. UNITED STATES of America, Respondent.

Crim. No. 7885.

United States District Court D. North Dakota, Southeastern Division.

March 23, 1959.

Carl Harvey Bistram, pro se.

Robert L. Vogel, U. S. Atty., Fargo, N. D., for respondent.

Ronald N. Davies, District Judge.

The petitioner, Carl Harvey Bistram, was indicted for the crime of kidnapping under Title 18 U.S.C. 1201(a). He was convicted and sentenced therefor upon his plea of guilty. Thereafter petitioner filed a motion to vacate and set aside the judgment on the ground that the sentencing Court lacked jurisdiction because the indictment failed to negative an exception contained in Section 1201 (a). This motion was overruled by this Court, and the petitioner again filed a motion to vacate and set aside the judgment upon the grounds that his plea of guilty was coerced and obtained by threats and promises. This motion was likewise overruled by this Court.

On appeal the Court of Appeals for the Eighth Circuit sustained this Court in overruling the first of the motions but held that on the second, involving coercion and threats, petitioner was entitled to the hearing sought.

After a plenary hearing, this Court again entered its order denying the petitioner's motion; and the Court of Appeals for the Eighth Circuit affirmed. Bistram v. United States, 248 F.2d 343.

There is now before this Court a third motion to vacate and set aside the sentence on the ground that petitioner was mentally incompetent at the time he entered his plea and was sentenced. In support of his motion Bistram has submitted a sworn affidavit averring that upon a hearing he will offer evidence to show (1) that he was mentally incompetent at the time he entered his plea of guilty and was sentenced, (2) that there is a history of hereditary insanity on the maternal side of his immediate family, (3) that he was determined to be mentally incompetent while confined in a Minnesota institution, and (4) that he suffered a brain concussion shortly before he entered his plea which further aggravated the then allegedly existing mental incompetency.

The petitioner's motion here, as with the two prior ones, is made pursuant to Title 28 U.S.C. § 2255. That the right exists to raise the issue of mental competency at the time of pleading guilty in sentencing was settled in Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835. Bishop was followed in Smith v. United States, 9 Cir., 1958, 259 F.2d 125, 127, in which the Court said:

"As for the right of the appellant to have a hearing upon the question of his sanity at the time of the trial, the whole matter is settled by the decision in Bishop v. United States * * *."

See also Simmons v. United States, 8 Cir., 1958, 253 F.2d 909, 911, where the Court, in denying an application for habeas corpus, stated:

"The Government next contends that the issue of appellant's sanity at the time of trial and sentence must be raised in the sentencing court by a motion under section 2255. We agree."

There also exists a second method by which petitioner may raise the issue of his mental competency at the time he entered his plea and was sentenced. In United States v. Meadows, D.C.W.D. Mich., 1955, 140 F.Supp. 184, the Court, after an exhaustive discussion of 18 U.S. C.A. § 4245, said that as no issue touching upon the petitioner's mental competency was raised before or at the time of the entry of his pleas, convictions and sentences, petitioner could avail himself of the remedy expressly provided by Section 4245.

United States v. Meadows was affirmed, Meadows v. United States, 6 Cir., 1956, 232 F.2d 312, the Court holding that:

"* * * the judgment be affirmed on the opinion of the district court * * * denying appellant's motion to

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