Bugg v. United States

• Decision Date: 14 February 1944
• Docket Number: No. 12711.,12711.
• Parties: BUGG v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

140 F.2d 848 (1944)

BUGG v. UNITED STATES.

No. 12711.

Circuit Court of Appeals, Eighth Circuit.

February 14, 1944.

Thomas M. Bugg, pro se.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo., for appellee.

Before SANBORN and WOODROUGH, Circuit Judges, and MOORE, District Judge.

SANBORN, Circuit Judge.

The question presented is whether the District Court erred in refusing to vacate or correct a sentence imposed upon the appellant on December 6, 1933, upon his plea of guilty to an indictment charging him and others with having committed an assault upon a custodian of the mails with intent to rob, steal and purloin mail matter, and, in attempting the robbery, with having put the life of the custodian in jeopardy by the use of a dangerous weapon. The applicable statute is § 197, c. 321, 35 Stat. 1126, 18 U.S.C.A. § 320.¹

The sentence was imprisonment for twenty-five years, as required by the statute. The judge who imposed the sentence is now dead. The attorney who represented the Government at the time the sentence was imposed is no longer in office. The appellant is confined in the United States Penitentiary at Leavenworth. In 1939 he sought release on habeas corpus in the United States District Court for the District of Kansas on the ground that he had been denied the assistance of counsel. His petition for habeas corpus was denied, and its denial was affirmed. Bugg v. Hudspeth, 10 Cir., 113 F.2d 260. In 1941 the appellant filed in the court below a motion to modify and correct the sentence upon the ground that it should not have exceeded imprisonment for ten years. The motion was denied upon the grounds that it was without merit and that the court was without authority to disturb the sentence. Compare Blackwood v. United States, 8 Cir., 138 F.2d 461.

On August 16, 1943, the appellant filed the present motion to vacate or modify the sentence. He asserts in his motion that the sentence is void, that the court had power to vacate it, and that he was entitled to be present at the hearing on the motion. He requested the court not to appoint counsel for him, and prayed for the issuance of a writ of habeas corpus ad testificandum. His motion stated no facts justifying his assertion that the sentence was void. In a brief accompanying the motion he argued that the sentence was a nullity because (1) the indictment did not show what statute was violated, (2) the indictment was not returned by the grand jury as a true bill, (3) the indictment, while charging that the life of a custodian of the mail was put in jeopardy by the use of a dangerous weapon, "to-wit, a pistol," did not state that the pistol was loaded, (4) the indictment failed to specify what mail was taken and did not sufficiently describe the place of the robbery, (5) the appellant did not have a jury trial and the court did not appoint an attorney to represent him, (6) the offense charged was conspiracy, the maximum sentence for which was two years' imprisonment, (7) the sentence designated the place of confinement and did not show what statute had been violated. On August 23, 1943, the court below entered an order denying the request of the appellant for a writ of habeas corpus ad testificandum and his motion for the vacation or modification of his sentence. This appeal is from the order and is prosecuted in forma pauperis.

An application for a writ of habeas corpus ad testificandum is addressed to the discretion of the court. Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375, 385; Gilmore v. United States, 10 Cir., 129 F.2d 199, 202; Murrey v. United States, 8 Cir., 138 F.2d 94, 96, 97. The motion of the appellant was filed nearly ten years after the imposition of sentence. It constituted his third attempt to have the sentence set aside or modified. Neither the motion nor the brief accompanying it stated any facts to support the appellant's assertions that he had been denied the assistance of counsel or the right to a jury trial. The files and records of the court below negatived the appellant's assertions in those regards, as did also the record of the habeas corpus proceeding brought by the appellant in the United States District Court for the District of Kansas. The court below was justified in believing that the appellant's motion presented no substantial issue of fact and raised only questions of law. The court did not abuse its discretion in denying the appellant's request that a writ of habeas corpus ad testificandum be issued.

We are of the opinion that the court below was without power, upon any of the grounds asserted by the appellant, to vacate the sentence which had been imposed upon the appellant almost ten years before he filed his motion. United States v. Mayer, 235 U.S. 55, 66, 67, 35 S.Ct. 16, 59 L.Ed. 129; Reeves v. United States, 8 Cir., 35 F.2d 323, 325; Audette v. United States, 9 Cir., 99 F.2d 113; Gilmore v. United States, 10 Cir., 129 F.2d 199, 202; Gilmore v. United States, 8 Cir., 131 F.2d 873, 874, 875; Ellerbrake v. United States, 7 Cir., 134 F.2d 683; MacDonald v. United States, 8 Cir., 136 F.2d 482; Knight v. United States, 8 Cir., 137 F.2d 940; Murrey v. United States, 8 Cir., 138 F.2d 94, 96. If the sentence imposed upon the appellant had been in excess of the maximum penalty authorized by statute, as he contends, the court below could have corrected the sentence to conform to the statute. Gilmore v. United States, 8 Cir., 131 F.2d 873, 875. There is, however, no merit in the appellant's contention that he was charged with a conspiracy to commit the substantive offense described in the indictment. He and the other defendants were therein charged with having committed that substantive offense.² There was no conspiracy count in the indictment. The sentence imposed upon the appellant was the sentence prescribed by the statute as punishment for the offense charged in the indictment.

For the purposes of this appeal, this Court will assume that the court below, regardless of the lapse of time and regardless of prior adjudications, might have granted the relief prayed for by the appellant, and will consider whether the sentence was a lawful one.

The indictment was in conventional form, followed the language of the statute, and showed when, where and by whom the offense charged was committed. An indictment similar in all substantial particulars was sustained by this Court in Blackwood v. United States, 8 Cir., 138 F.2d 461. The indictment in suit was signed by the United States Attorney, showed upon its face that it was returned by the grand jury to the court below, and was endorsed: "Violation 18 U.S.C....