Burdette v. Settle

• Decision Date: 06 December 1961
• Docket Number: No. 16766.,16766.
• Citation: 296 F.2d 687
• Parties: Nathaniel BURDETTE, Appellant, v. Dr. R. O. SETTLE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

296 F.2d 687 (1961)

Nathaniel BURDETTE, Appellant, v. Dr. R. O. SETTLE, Appellee.

No. 16766.

United States Court of Appeals Eighth Circuit.

December 6, 1961.

Nathaniel Burdette, pro se.

F. Russell Millin, U. S. Atty., Kansas City, Mo., Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., was on brief, for appellee.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

PER CURIAM.

This is an appeal by Nathaniel Burdette from final order denying his petition for writ of habeas corpus. Appellant is in federal custody by reason of a twenty-year sentence imposed on January 27, 1955, by the United States District Court for the Eastern District of Michigan, as a result of an indictment, trial by jury, and conviction on charges of bank robbery and placing a life in jeopardy, in violation of 18 U.S.C.A. § 2113(b) and (d). Appellant at the time of the filing of his petition was serving his sentence in a United States Medical Center for federal prisoners at Springfield, Missouri, located in the Western District of Missouri.

Appellant's petition for habeas corpus is rather lengthy and it is somewhat difficult to understand the precise scope of his complaints. Primarily, his contention appears to be that he was legally insane at the time of his trial and sentence and that hence his conviction is in violation of his constitutional and statutory rights and is void. The trial court in a memorandum opinion (not reported) found that the appellant had in 1957 filed in the sentencing court, pursuant to 28 U.S.C.A. § 2255, a motion claiming relief upon substantially the same basis upon which he is here seeking relief. As observed by the trial court, the federal court for the Eastern District of Michigan sets out in detail in its opinion the complaints made by the appellant and the reasons why the court was satisfied that the appellant was entitled to no relief. See United States v. Burdette, E.D. Mich., 161 F.Supp. 326, aff'd, 6 Cir., 254 F.2d 610, cert. denied, 359 U.S. 976, 79 S.Ct. 887, 3 L.Ed.2d 842.

In 1960 the appellant filed in the sentencing court a petition for writ of error coram nobis, again urging his conviction was void because of insanity at the time of the trial. Such motion was denied September 1, 1960, upon the ground that the subject matter had been determined by the court in the 2255 proceedings heretofore referred to. Defendant attempted an appeal from this order but upon denial of leave to appeal in forma pauperis, the appeal was not prosecuted and the appeal was dismissed.

In our present case, the trial court noted that the petition contained an allegation not presented in the Michigan proceedings which was to the effect that a panel of three doctors at Leavenworth Penitentiary in April, 1960, found that appellant was then insane. The court determined that this was not the type of certificate contemplated by 18 U.S.C.A. § 4245, noting that it was not made by the Director of Prisons as contemplated by such statute, and further observing that the finding of insanity in 1960 affords no conclusive proof of insanity at the time of the trial some five years earlier. Moreover, a certificate issued pursuant to § 4245 clearly requires any further proceedings to be had as a result thereof to be in the sentencing court.

The trial court reached a permissible conclusion in its determination that the basis for relief claimed in the 2255 motion in the sentencing court upon the issue of appellant's insanity at the time of his trial presented the same basic issue as is here presented. Moreover, if the assertion of the availability of the additional evidence pertaining to the insanity determination in 1960 has sufficient bearing on applicant's mental condition at the time of his 1954 trial, under § 2255 appropriate motion would have to be made in the sentencing court. Section 2255 clearly requires a prisoner to exhaust his remedies in the sentencing court before seeking release on habeas corpus. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232; Simmons v. United States, 8 Cir., 253 F. 2d 909, 911; Martin v. United States, 8 Cir., 248 F.2d 554, 556; Weber v. Steele, 8 Cir., 185 F.2d 799, 800.

Appellant has not exhausted his remedies in the sentencing court. We fully agree with the trial court's view that the appellant has made no showing that a 2255 motion...