Cassidy v. United States

• Decision Date: 01 July 1970
• Docket Number: No. 20032.,20032.
• Citation: 428 F.2d 585
• Parties: Brett CASSIDY, Appellant v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

428 F.2d 585 (1970)

Brett CASSIDY, Appellant v. UNITED STATES of America, Appellee.

No. 20032.

United States Court of Appeals, Eighth Circuit.

June 8, 1970.

Rehearing Denied June 19, 1970.

Rehearing Denied July 1, 1970.

Brett Cassidy, pro se.

Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., and James M. Gordon, Asst. U. S. Atty., for appellee.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

Rehearing En Banc Denied June 19, 1970.

GIBSON, Circuit Judge.

This is an appeal from a denial of appellant Brett Cassidy's motion presented to the United States District Court for the Eastern District of Missouri, the Honorable Judge Roy W. Harper presiding, to vacate his sentence under 28 U.S. C. § 2255. Cassidy, represented by appointed counsel, was tried without jury, convicted and sentenced to five years in the custody of the Attorney General on December 1, 1967 for a violation of 50 App.U.S.C. § 462, failure to report for and submit to induction into the United States Armed Forces. Cassidy with retained counsel filed a notice of appeal and was not imprisoned while the appeal was pending. However, in October 1968 Cassidy dropped his appeal and after voluntarily surrendering to federal authorities began serving his sentence in November 1968.

Appellant makes five separate claims of error. (1) The Selective Service System's test for determining a registrant's right to a conscientious objector classification is invalid under the First Amendment. (2) The failure of appellant's local board to grant appellant a conscientious objector classification (I-O or I-A-O) was erroneous. (3) Appellant was denied assistance of counsel before his local draft board in violation of the Sixth Amendment. (4) The system of local boards results in unequal application of the law in violation of the Fourteenth Amendment. (5) The sentence imposed was unduly harsh and the trial judge erroneously made no use of the pre-sentence report.

Appellant's first two allegations are in essence alternative grounds for challenging the substantive basis for the denial of his request for conscientious objector status. In the trial court the trial judge made a general finding of guilty but did not state the grounds on which he concluded that Cassidy was not entitled to a conscientious objector classification. Appellant, who was represented by counsel, made no request for a special finding of facts which is his duty under Rule 23(c), Fed.R.Crim.P., in order to preserve certain issues for appeal. The trial judge may have concluded that Cassidy's views were not sincerely held though they met the statutory test of 50 App.U.S.C. § 456(j) that they were based on "religious training and belief" and were not "essentially political, sociological, or philosophical * * * or a merely personal moral code." The trial judge may have felt Cassidy's views were sincere but did not meet the statutory criteria for conscientious objection. Finally, the trial judge may have determined that Cassidy's views were neither sincere nor within the statutory criteria for conscientious objection.

It is apparent, then, that the trial judge may have found petitioner guilty and not entitled to conscientious objector status for the reason that he believed petitioner's views were not sincerely held or for the reason that his views under the enlarged concept of religious belief defined in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) did not qualify him for a conscientious objector classification. There is significant evidence in the record to support either finding. If either were the ground for conviction it would not be reviewable in a § 2255 motion. Under § 2255 only constitutional or jurisdictional defects may be challenged. Section 2255 does not exist to correct erroneous factual determinations or to challenge the sufficiency of the evidence, Sunal v. Large, 332 U.S. 174, 179, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), or to correct errors which should have been brought to the attention of the trial court or the appellate court on direct appeal. Here, petitioner deliberately bypassed normal procedures, Fed.R.App.P. 4(b), by dropping his direct appeal.

Since: (1) a factual determination is not challengeable under § 2255, (2) petitioner deliberately failed to pursue direct appeal, (3) proper steps were not taken under Rule 23(c) to determine the specific reason for the trial judge's guilty verdict, (4) in a § 2255 motion the burden of proof is on the petitioner to show that his sentence must be vacated, Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and (5) evidence did exist to support a trial court finding that petitioner's views were not sincerely held or failed to conform with the enlarged concept of religious belief under Seeger, we can only assume that there was a valid reason for the court's verdict and we must uphold that finding. Thus, petitioner's allegation that an unconstitutional standard was used to determine his right to conscientious objector status cannot be reached by us since the use of such an improper standard has not been shown to have been the reason for the trial judge's finding. Furthermore, we have held that petitioner cannot challenge in a § 2255 motion the sufficiency of the evidence to support a finding that petitioner's views were not sincerely held or that he failed to qualify under Seeger for a conscientious objector classification. Thus, no relief is available for petitioner's substantive allegations of error.

Assuming, arguendo, that we could reach petitioner's claim that an improper standard was used in denying his request for conscientious objector classification, we don't think that claim has merit. The basis of Cassidy's claim is that the traditional definition of "religious belief" under the statute creates an improper classification on which to base conscientious objector status in violation of the First Amendment. However, the Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) followed by this Court in United States v. Levy, 419 F.2d 360 (8th Cir. 1969) has abandoned a traditional definition of "religious belief," adopting a much broader definition while recognizing the constitutionality of the statute. As the Supreme Court said in Seeger, 380 U.S. at 176, 85 S.Ct. at 859, religious belief includes a "sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption * * *." In construing the parallelism test adopted by the Supreme Court in Seeger, we said in Levy at 367:

"Admittedly the parallelism test of the Seeger case may significantly reduce the vitality of the personal moral code test, to the extent that pacifistic beliefs, if sincerely and deeply held may be defined as religious regardless of their source."

It is clear then, that under the law as it presently stands, the statutory classification as judicially defined is constitutional. The trial judge's memorandum decision dealing with this § 2255 motion evidenced a thorough understanding of the present state of the law regarding the standards for determining a registrant's right to conscientious objector classification. Cassidy v. United States, 304 F. Supp. 864, 869 (E.D.Mo.1969). We adhere to the statement in Townsend v. Sain, 372 U.S. 293, 315, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) that a habeas court¹ could "properly assume that the * * * trier of fact applied correct standards of * * * law to the facts, in the absence of evidence * * * that there is reason to suspect that an incorrect standard was in fact applied." Thus, even if this were an issue we could reach, since there is no evidence to support a finding that the trial court applied incorrect or unconstitutional standards we must deny this contention of error.

Petitioner's next contention is that his rights under the Fifth and Sixth Amendments were violated when he was denied assistance of counsel at local draft board meetings. This contention is without merit. Selective Service Regulation 1624.1 expressly forbids such representation. Nickerson v. United States, 391 F.2d 760 (10th Cir. 1968), cert. denied 392 U.S. 907, 88 S.Ct. 2061, 20 L.Ed.2d 1366; United States v. Capson, 347 F.2d 959 (10th Cir. 1965), cert. denied, 382 U.S. 911, 86 S.Ct. 254, 15 L.Ed.2d 163, (cited by appellant) and United States v. Sturgis, 342 F.2d 328 (3d Cir. 1965), cert. denied, 382 U.S. 879, 86 S.Ct. 164, 15 L.Ed.2d 120, held that registrants are not entitled to assistance of counsel at local draft board meetings since such proceedings are neither judicial nor criminal nor penal in character.

Petitioner asserts that under Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) the present Selective Service System denies him equal protection of the laws. The gravamen of this claim appears to be that the local board system does not operate uniformly throughout the country. This contention is frivolous. Petitioner does not muster the facts to support this assertion or indicate how it has adversely affected him. Furthermore, all the local boards are equally subject to the Military Selective Service Act of 1967, 50 App.U.S.C. § 451 et seq., and the regulations thereunder. We do not believe that petitioner has demonstrated any violation of the Equal Protection Clause of the Fourteenth Amendment in the application of the Selective Service laws.

Petitioner's final contention is that the sentence imposed was unduly harsh and that it was improperly imposed without resort to a pre-sentence report. As the District Court observed, the severity of the sentence, if within the maximum allowed, is a matter within the sound discretion of the judge. Lipscomb v. United States, 273 F.2d 860 (8th Cir. 1960), cert. denied, 364 U.S. 836, 81 S.Ct. 72, 5 L.Ed.2d 61. Nor is the sentencing judge obliged to consider a pre-sentence report though it is...