Bistram v. United States

• Citation: 180 F. Supp. 501
• Decision Date: 08 February 1960
• Docket Number: Cr. No. 7885.
• Parties: Carl Harvey BISTRAM, Petitioner, v. UNITED STATES of America, Respondent.
• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota

180 F. Supp. 501

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

Cr. No. 7885.

United States District Court D. North Dakota, S.E. D.

February 8, 1960.

Carl Harvey Bistram, pro se.

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

RONALD N. DAVIES, District Judge.

The matter now before the Court illustrates the constant and vexing problems arising out of the abuse of 28 U.S. C.A. § 2255, by criminals lawfully imprisoned who, by repeated and successive motions brought under that Section, impose an unnecessarily onerous burden upon an already overburdened federal judiciary.

Here for the third time the petitioner Carl Harvey Bistram seeks to have his sentence vacated and set aside, this time upon the grounds that he was mentally incompetent at the time he entered his plea of guilty and was sentenced in this court some eleven years ago.

Bistram was indicted for the crime of kidnaping and was convicted and sentenced therefor upon his plea of guilty. Petitioner first 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 18 U.S.C.A. § 1201(a). The motion was overruled by this Court, Bistram v. United States, 139 F.Supp. 922, 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. That motion was likewise overruled by this Court April 11, 1956.

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. Bistram v. United States, 237 F.2d 243. Both motions were made pursuant to 28 U.S.C.A. § 2255.

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

On February 7, 1959, almost ten years after the petitioner was convicted and sentenced upon his plea of guilty, he filed a third motion to vacate and set aside sentence pursuant to Title 28 U.S. C.A. § 2255, upon the ground that he was mentally incompetent at the time he entered his plea of guilty and was sentenced. In support of his motion petitioner submitted a sworn affidavit averring that upon a hearing he would 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.

In its order of March 23, 1959, this Court said 171 F.Supp. 258, 260:

"In the instant case Carl Harvey Bistram, the petitioner here, was represented by competent counsel. There was no contention or even intimation by petitioner or his counsel that he was not mentally competent at the time he entered his plea and was sentenced. It has never been brought to the Court's attention that there had ever been a prior determination of the petitioner's mental competency, if any actually has been made, and there is nothing whatever in the Court's records and files to indicate that petitioner had ever suffered prior mental difficulties.

"It has been repeatedly held that the presumption of sanity continues until overcome by evidence. There is at this time nothing in petitioner's record to indicate that the petitioner is not mentally competent nor that he was mentally incompetent at the time he entered his plea and was sentenced. It is only in his petition that is found the unsupported statement that he was determined to be mentally incompetent while in a Minnesota institution and a statement to the effect that there is hereditary insanity in his family. There is no allegation that the petitioner was ever legally adjudged to be mentally incompetent."

This Court then denied Bistram's motion without prejudice to petitioner to proceed (1) under Title 18 U.S.C.A. § 4245, or (2) to renew his motion within ninety days (90), provided that such renewed motion shall be supported by affidavit and documents stating when, where and for what period of time petitioner was allegedly determined to be mentally incompetent and documentary evidence of any alleged hereditary insanity in petitioner's family.

Petitioner renewed his motion on June 15, 1959, to which he attached several letters which indicated (1) that petitioner's mother, Grace, Mrs. Anton Bistram, had been a patient in Ancker Hospital, St. Paul, Minnesota, from May 27th to May 29th, 1935; that she was discharged with a diagnosis of dementia praecox, and by order of that same date the Ramsey County Probate Court, Minnesota, committed her to St. Peter Hospital, Minnesota, where she died July 7, 1935, of bronchopneumonia; that at the time of her commitment she was suffering from a goiter deficiency and had been sick a month with delusions and hallucinations; (2) that Bistram's uncle, Justice Meacham, was admitted to Fergus Falls State Hospital, Minnesota, August 28, 1922, pursuant to an order issued by the Becker County Probate Court, Minnesota, and the reason given for his commitment was mental illness; that Meacham was given a provisional discharge May 24, 1923, and final discharge December 6, 1933; (3) that petitioner was admitted to a hospital on June 7, 1949, for multiple lacerations and concussion and discharged the following day.

Again Bistram's motion contained nothing to support his allegation that he was determined to be mentally incompetent while confined in a Minnesota institution.

This Court ordered, on September 16, 1959, that ultimate disposition of petitioner's motion be reserved pending the filing with this Court within ninety (90) days of that date, by the Attorney General of the United States, the report of the Board of Examiners prepared pursuant to Title 18 U.S.C.A. § 4241, and the certificate of probable cause, if indicated, by the Director of the Bureau of Prisons as contemplated by Title 18 U.S.C.A. § 4245.

The Attorney General has not filed a report of the Board of Examiners prepared pursuant to Sec. 4241 nor a certificate of probable cause as contemplated by Sec. 4245. From this the Court can only conclude that the petitioner's mental condition did not and does not warrant that any action be taken pursuant to either of the above cited Sections. (On January 11, 1960, there was, though not timely, filed an affidavit by the Director of the Bureau of Prisons in which he averred (1) that petitioner was committed to the Federal Penitentiary at Leavenworth, Kansas, on November 4, 1949, where examination did not reveal any significant evidence of mental disorder, (2) during the entire time that petitioner has been confined to Federal institutions he has shown no evidence of mental disorder, and (3) that there is no probable cause to believe that petitioner was incompetent at the time of his trial.)

The petitioner's original motion of February 7, 1959, contained the conclusionary allegation that he was "determined" to be mentally incompetent while confined in a Minnesota institution. The renewed motion filed by petitioner June 15, 1959, contains the allegation that it was while confined to the Red Wing Training School, Red Wing, Minnesota, during the period 1937 to 1939, he was "determined" to be mentally incompetent.

The Government controverted this allegation by filing an opposing brief in which they directed the Court's attention to a Psychological Report of the Red Wing Training School attached thereto which shows that at the time petitioner was admitted to that institution nothing significant was found in connection with his mental health.

Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835, is cited by petitioner as holding that he is now entitled to raise the issue of mental competency which was not raised at the time he pleaded guilty and was sentenced and is entitled to be present at a hearing thereon. The Bishop case is distinguishable, there the petitioner having had a long history of mental deficiency and having been adjudged insane shortly after being sentenced. The Supreme Court treated the case as sui generis. Handlon v. United States, 6 Cir., 1957, 246 F.2d 866.

Petitioner cites many cases in support of his contention, but in every instance petitioners therein had histories of mental incompetency prior to sentencing and/or were adjudged mentally defective shortly after, from which it could be inferred they were incompetent at the time of trial and sentencing. Bishop v. United States, supra; Simmons v. United States, 8 Cir., 1958, 253 F.2d 909; Gregori v. United States, 5 Cir., 1957, 243 F.2d 48; Smith v. United States, 9 Cir., 1959, 267 F.2d 210; Brown v. United States, 5 Cir., 1959, 267 F.2d 42; Bell v. United States, 9 Cir., 1959, 269 F.2d 419.

Petitioner here, Carl Harvey Bistram, does not allege he is or ever was adjudged mentally incompetent or insane, nor is there any allegation of a history of mental incompetency that would indicate he was not competent to enter a plea of guilty in 1949. There is only the unsupported statement by petitioner that he was "determined" to be mentally incompetent while confined in a Minnesota institution.

Also cited by petitioner is Smith v. United States, 9 Cir., 1958, 259 F.2d 125, 126, but that case, too, is distinguishable. The Court in Smith held that, "We think that this motion sufficiently set forth facts which if true would entitle the petitioner to relief." A petition under Sec. 2255 must set forth facts as distinguished from mere conclusions. A petitioner's allegations supported only by his own...