Cain v. United States, No. 16095.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: GARDNER, VOGEL and VAN OOSTERHOUT, Circuit
• Citation: 271 F.2d 337
• Parties: Richard O. CAIN, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 16095.
• Decision Date: 06 November 1959

271 F.2d 337 (1959)

Richard O. CAIN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 16095.

United States Court of Appeals Eighth Circuit.

November 6, 1959.

Richard O. Cain, filed brief pro se.

Edward L. Scheufler, U. S. Atty., and Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., filed brief for appellee.

Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.

VOGEL, Circuit Judge.

Appellant, Richard O. Cain, appeals from an order of the District Court for the Western District of Missouri overruling his motion brought under 28 U.S. C.A. § 2255 to vacate judgment and sentence. Appellant was first proceeded against in case No. 18,921, wherein he and five others were charged with a conspiracy in violation of 18 U.S.C.A. § 371 and with the transportation, possession and sale of narcotics contrary to the provisions of 21 U.S.C.A. § 174, 26 U.S.C.A. § 4704(a) and 26 U.S.C.A. § 4705(a). Subsequently, in case No. 19,832, the defendant and one other were charged in three counts with additional narcotic violations. Upon waivers of indictment and pleas of guilty, the appellant was, on April 12, 1957, sentenced to serve for both cases a total period of 20 years' confinement. On July 28, 1958, appellant filed his motion to vacate judgment and sentence under § 2255, subsequently amending the same on July 31, 1958. The gravamen of his charge was that from the time of his arrest through the time of his arraignment and the imposition of sentences he was under physical and mental coercion and duress to such an extent that the proceedings against him and particularly his pleas of guilty were invalid and should be set aside, and that to that end he should be granted a hearing to testify in support of his contentions. Following an exhaustive review of all proceedings, Chief Judge Duncan of the District Court found that the appellant's complaints "are entirely without foundation in fact and law," "* * * that the defendant Cain knowingly and intelligently waived

271 F.2d 338

submission to the grand jury and entered his pleas of guilty with the full and complete knowledge of all of his constitutional rights, and that his motion is baseless, without foundation in fact or legal substance", and overruled the motion without granting appellant's request for a personal hearing. Appeal to this court was perfected. Delay in disposition has been occasioned by several time extensions granted at the request of appellant

28 U.S.C.A. § 2255, under which appellant's motion was made, provides that a prisoner claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States or that the court was without jurisdiction or that the sentence was in excess of the maximum authorized by law or otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct it. Additionally, it provides:

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. * * *

"A court may entertain and determine such motion without requiring the production of the prisoner at the hearing."

It is claimed here that the trial court committed error in entertaining and determining appellant's motion without granting his request for personal presence at a hearing. We have sent for and examined in detail the two District Court files including transcripts of all proceedings before the District Court and are satisfied that it was correct in holding that no personal hearing was necessary and that appellant's claims before this court are without merit.

While the general rule is that a hearing is necessary prior to the disposition of all § 2255 motions presenting factual issues, Teller v. United States, 6 Cir., 1959, 263 F.2d 871; Watson v. United States, 1958, 104 U.S.App.D.C. 321, 262 F.2d 33; Kennedy v. United States, 5 Cir., 1957, 249 F.2d 257, certiorari denied 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, this requirement is subject to the statutory qualification that the files and records of the case may be sufficient alone to dispose of the motion where they "conclusively show that the prisoner is entitled to no relief". Thus, the records of the prior proceedings may so completely affirmatively rebut the motion's contentions as to make a hearing unnecessary. Johnson v. United States, 6 Cir., 1956, 239 F.2d 698, certiorari denied 354 U.S. 940, 77 S.Ct. 1404, 1 L.Ed.2d 1539; Richardson v. United States, 8 Cir., 1954, 217 F.2d 696; United States v. Sturm, 7 Cir., 1950, 180 F.2d 413, certiorari denied 339 U.S. 986, 70 S.Ct. 1008, 94 L.Ed. 1388. In addition, they may have this effect by demonstrating that the petitioner had prior opportunities to urge the claims of his motion and failed to do so, thereby raising a conclusive inference of their invalidity. Kyle v. United States, 2 Cir., 1959, 266 F.2d 670, certiorari denied October 19, 1959, 80 S.Ct. 131; Juelich v. United States, 6 Cir., 1958, 257 F.2d 424, certiorari denied 358 U.S. 847, 79 S.Ct. 72, 3...