Chandler v. United States

• Decision Date: 01 September 1971
• Docket Number: Civ. No. 70-959-H.
• Citation: 332 F. Supp. 397
• Parties: Richard CHANDLER v. UNITED STATES of America.
• Court: U.S. District Court — District of Maryland

332 F. Supp. 397

Richard CHANDLER v. UNITED STATES of America.

Civ. No. 70-959-H.

United States District Court, D. Maryland.

September 1, 1971.

Joseph Forer, Washington, D. C., for petitioner.

George Beall, U. S. Atty., and Leonard M. Linton, Jr., Asst. U. S. Atty., for respondent.

MEMORANDUM AND ORDER

HARVEY, District Judge.

Richard Chandler, petitioner, has filed a motion herein under 28 U.S.C. § 2255, seeking to vacate the judgment entered and sentence imposed in this Court following his trial and conviction in 1968 of a violation of the Selective Service law. Petitioner was indicted on February 20, 1968 and was charged with failing and neglecting to comply with an order of his local draft board to report for and submit to induction into the Armed Forces. At arraignment, the Court suggested that he be represented by counsel. After an extended colloquy with the Court, petitioner declined to accept appointment of counsel and entered a plea of not guilty to the charge.

Petitioner's case thereupon came on for trial on March 21, 1968 before the Court sitting without a jury. Again, the Court urged petitioner to accept the appointment of counsel to represent him at his trial, but petitioner again refused and insisted on trying the case himself. After some discussion between the Court and petitioner's mother who was present on the morning the case was called for trial, the Court permitted petitioner to represent himself. Petitioner was tried, was found guilty and was sentenced to a term of imprisonment of 4½ years. United States v. Chandler, Criminal No. 27984.

Chandler promptly filed an appeal in which he raised the same question presented at trial, namely, that the Selective Service Act of 1967 was unconstitutional because it sanctioned involuntary servitude contrary to the Thirteenth Amendment to the Constitution. The Fourth Circuit affirmed the conviction in a per curiam opinion. United States v. Chandler, 403 F.2d 531 (4th Cir. 1968).

Petitioner started serving his sentence on November 18, 1968. On February 19, 1969, through counsel, he filed a formal motion under Rule 35 to reduce his sentence. In support of such motion, it was alleged that petitioner was "emotionally committed to the position that it was his moral duty to refuse to submit to what he considered to be unjustifiable restrictions on his personal liberty," that he had refused to work at the prison and that he was in the fifth day of a hunger strike which he intended to continue indefinitely. On February 26, 1969, this Court reduced petitioner's sentence to 2½ years. In a letter to counsel, the Court said the following:

"In view of the defendant's curious psychological makeup and actions to date in prison, I have decided to reduce the sentence previously imposed to two and one-half years, mainly because I have concluded that serving all or substantially all of the four and one-half years previously imposed would not serve the interests of the defendant or of society."

On August 14, 1970, petitioner, represented by private counsel, filed the pending motion. He claims that his 1968 conviction was unlawful under Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), because his induction was accelerated. In responding, the government contends that petitioner's induction was not accelerated and that in any event Gutknecht should not be applied retroactively to a case of this sort. Before a hearing could be scheduled in this case, petitioner was released from prison on November 18, 1970. Briefs have now been filed, and a hearing held, at which testimony was taken and certain exhibits introduced relating to the manner in which petitioner was ordered to report for induction.¹

Chandler was born on November 14, 1947. When he attained the age of 18 he duly registered with Local Board No. 54 in Bethesda, Maryland, and was classified II-S on May 4, 1966. On that date, he was a full time student at the University of Minnesota, but he subsequently dropped out of college and was reclassified I-A.² On January 6, 1967, petitioner was ordered to report for his physical on January 23, 1967. He did not so report at that time, but was not then declared a delinquent.

On September 18, 1967, he was ordered for the second time to report for a physical examination, the scheduled date being October 3, 1967. When he failed to report on this occasion, he was declared to be a delinquent by notice dated October 18, 1967. On November 21, 1967, he was ordered to report for induction on December 6, 1967. Following receipt of this notice, petitioner telephoned his local board on December 11, 1967 advising that he refused to come in for pre-induction or for induction. On February 13, 1968, Chandler was called by an Agent of the Federal Bureau of Investigation concerning his status as a delinquent. Chandler told the Agent that he would not submit to induction in the Armed Forces and that he would not contact his local board and follow their instructions to remove his delinquency. Criminal prosecution thereafter followed, the indictment being filed in this Court on February 20, 1968.

Although Chandler is no longer in custody as a result of such conviction, the government has not contended here that this Court does not have jurisdiction to decide this case under 28 U.S.C. § 2255. When the motion was filed on August 14, 1970, petitioner was in custody, and he was still confined when the government filed its answer on September 21, 1970. However, before a hearing could be scheduled, petitioner was released from confinement, having served his sentence. There is some doubt whether petitioner is entitled to relief under § 2255 now that he is no longer in custody, particularly in the absence of any allegations or proof as to the type of "restraint" being now suffered by petitioner. See United States v. Flanagan, 305 F.Supp. 325, 326-327 (E.D.Va.1969); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Baker v. United States, 429 F.2d 1278, 1279, f. n. 1 (9th Cir. 1970); Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1076-1078 (1970). However, since this point has not been briefed or argued here and in view of this Court's resolution of the other questions presented, it will be assumed for the purposes of this case that relief would be available to Chandler if he were to succeed on the merits in this § 2255 proceeding.

This Court is therefore faced at the outset with the question whether the Gutknecht decision should be applied to Chandler's 1968 conviction in this § 2255 proceeding. The Gutknecht case was decided by the Supreme Court on January 19, 1970, almost two years after petitioner's indictment was filed. The Supreme Court held that while the Selective Service Act of 1967 provided for the criminal prosecution of delinquent Selective Service registrants, it did not authorize the regulations permitting accelerated induction. Petitioner here contends that he was declared a delinquent by his local board, that his board then accelerated his induction date and that therefore his conviction for failing to report on such date is invalid under Gutknecht.

The question of the retroactivity of newly enunciated principles of criminal law is a troublesome one. United States v. Frazier, 304 F.Supp. 467 (D.Md.1969). The first major case to consider this issue was Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). After reviewing its previous decisions on the question, the Supreme Court said this (at page 627, 85 S.Ct. at page 1736):

"Under our cases it appears (1) that a change in law will be given effect while a case is on direct review, Schooner Peggy United States v. Schooner Peggy, 1 Cranch 103, 2 L. Ed. 49, supra, and (2) that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set `principle of absolute retroactive invalidity' but depends upon a consideration of particular relations * * * and particular conduct * * * of rights claimed to have become vested, of status, of prior determinations deemed to have finality'; and `of public policy in the light of the nature both of the statute and of its previous application.' Chicot County Drainage Dist. v. Baxter State Bank, supra, 308 U.S. 371 at 374, 60 S.Ct. 317 at 319, 84 L.Ed. 329."

Summarizing, the Court in Linkletter concluded "that the Constitution neither prohibits nor requires retrospective effect." (at page 629, 85 S.Ct. at page 1737). In Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), the Supreme Court listed the criteria for resolving a question concerning the retroactivity of a new rule affecting a criminal trial as "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."

Applying those principles to the facts here, it would appear that the purpose of the Gutknecht decision was to halt the practice followed by Selective Service officials of declaring registrants delinquents and thereby accelerating their induction. The Supreme Court declared invalid the regulations permitting such practice, finding that existing legislation did not authorize the promulgation of such regulations. As a result of the Gutknecht decision, regulations have been revised, and registrants are no longer inducted because of delinquency. See United States v. Dobie, 444 F.2d 417, f. n. 4 (4th Cir. 1971). To apply the Gutknecht decision retroactively to petitioner here would not further the purpose of the decision, which was not concerned with a constitutional rule that would be widely applicable to criminal trials in general.

Some courts, in determining whether a rule should be given retroactive effect, have considered whether such an effect would preclude the conviction of innocent persons. In United...