Churder v. United States

• Decision Date: 03 December 1968
• Docket Number: No. 68 C 454(1).,68 C 454(1).
• Citation: 294 F. Supp. 207
• Parties: James Corbett CHURDER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

294 F. Supp. 207

James Corbett CHURDER, Plaintiff, v. UNITED STATES of America, Defendant.

No. 68 C 454(1).

United States District Court E. D. Missouri, E. D.

December 3, 1968.

James Corbett Churder, pro se.

Veryl L. Riddle, U. S. Atty., Irvin L. Ruzicka, Asst. U. S. Atty., St. Louis, Mo., for defendant.

MEMORANDUM OPINION AND ORDER

HARPER, Chief Judge.

The plaintiff in this case was convicted by a jury of a violation of 18 U.S.C.A. § 641 on January 10, 1968, Case Number 66Cr 217(1). Appeal was taken, and this conviction was affirmed by the Eighth Circuit, Churder v. United States, 387 F.2d 825 (1968). Now plaintiff seeks post-conviction relief under 28 U.S.C.A. § 2255. The facts in this case are quite fully re-reported in 387 F.2d and the court will not reiterate them.

Section 2255 provides:

"A prisoner in custody under the sentence of a court established by Act of Congress 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 is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

"A motion for such relief may be made at any time.

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, * * *."

The initial purpose of this section was to alleviate some of the more difficult problems in the administration of federal habeas corpus jurisdiction. Since the motion is required to be filed with the sentencing court the section often has as its by-product the additional convenience embodied in the fact that the presiding trial judge will hear and determine the motion. This factor is particularly beneficial to the effective and adequate administration of justice in our system, for it provides a most sensible means whereby the often frivolous claims of the incarcerated can be sorted from those of substance. As with all sound means for the preservation of individual liberties and rights, this section has been and is constantly being abused by those convicted criminals without scruples. A general reading of the reported cases under this section reveals that a great many courts find that often it is the trip to the sentencing court which motivates the motion and not a real deprivation of one's rights. Such reading also confirms what experience teaches: That often one in a federal institution will swear to almost anything in an effort to cause his removal from the penitentiary. It is indeed amazing to discover how well memories are revived and events recalled with great particularity when one is incarcerated.

Section 2255 does not grant an absolute right to an evidentiary hearing on a motion. See, Taylor v. United States, 282 F.2d 16, 20 (8th Cir. 1960); United States v. Hill, 319 F.2d 653 (6th Cir. 1965); Sanders v. United States, 373 U.S. 1, 21, 83 S.Ct. 1068, 1080, 10 L.Ed.2d 148 (1963); and Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

As noted by the Supreme Court in Sanders, supra:

"* * * we think it clear that the sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing."

Earlier in the Machibroda, supra, decision that court stated:

"The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner."

The language of the section requires a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *." In making such a determination the above quoted language from Sanders and Machibroda must be considered. Clearly, no hearing is required where the motion raises a question of law only or where the motion fails to raise a substantial issue as to the basic fairness of the original trial. Castaldi v. United States, 251 F.Supp. 681 (E.D.Mo.1966), aff'd 368 F.2d 185 (8th Cir. 1966); Machibroda v. United States, supra.

The same is true for instance where there is no dispute as to the facts, or if the conclusions urged are not supported by allegations of fact having some basis in fact and some believability. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. denied 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86; Wilkerson v. United States, 342 F.2d 807 (E.D.Mo. Nov. 11, 1965). In the final analysis, the governing principle of decision was stated by the Supreme Court in Sanders, supra, wherein that court quoted from Salinger v. Loisel, 265 U.S. 224, 231, 44 S.Ct. 519, 521, 68 L.Ed. 989:

"* * * each application is to be disposed of in the exercise of sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought. * * *"

A most careful and thoughtful inquiry into the whole record (including the transcript of the trial) and the materials having a rational bearing on this application reveal that complainant's motion is without merit and presents no substantial claim. Those factual allegations which withstand an initial test of veracity do not present such a fundamental miscarriage of justice as would justify relief by collateral attack.

Borrowing from Judge Blackmun, Churder v. United States, 387 F.2d 825, 829 (8th Cir. 1968) the court pauses to note: "This case, as do so many others, reeks of guilt and contrived excuse. But guilt or innocence, of course, is not among the issues before us. We pass on to those issues."

The plaintiff here has set forth ten grounds on which he bases his allegation that he was unlawfully incarcerated: (1) The government illegally used an electronic listening device to obtain evidence resulting in his conviction; (2) The jury was allowed to hear the evidence obtained by the illegal use of the walkie-talkie worn by the so-called reliable informant; (3) Violation of the right of confrontation by the failure to reveal the name of the informer; (4) Denial of a fair trial by not revealing the Section 3500 statements of the informer; (5) Error in that the court failed to direct remarks to the defendant or the record as to why the probation office need not turn in or make a presentence investigation; (6) Improper representation by trial counsel; (7) Improper representation by appellate counsel; (8) The prosecutor and postal agent's action and discussion before members of the jury relating to certain photographic slides; (9) Separation of the jury in a prejudicial manner; and (10) Conduct of the prosecutor and postal agent Thorn at counsel table during trial. Each of these contentions will be considered in order.

Points (1) and (2): In support of his stated bases plaintiff states that on November 20, 1966, the government illegally used a walkie-talkie, worn by the informer. According to the plaintiff, that informer engaged the plaintiff in conversation leading to incriminating statements. This information was that the plaintiff had in the trunk of his car the stolen money orders, stamps and related equipment. The record here reveals that on December 23, 1966, a hearing was held on defendant's motion to suppress certain evidence seized from his automobile. That motion was overruled and the decision relating thereto affirmed by the Court of Appeals. At this hearing, Postal Inspector Thorn, on cross-examination by the government and redirect, revealed that the informer did have a walkie-talkie. Further, at page 10 of the transcript of that hearing, Inspector Thorn stated that he conversed with this informant by use of such radio. The record affirmatively reveals that the postal inspector, did not listen into any conversation the informer had with the plaintiff, but rather that after such conversation occurred he received by radio the information that plaintiff had the stolen matter in his automobile. Therefore, this is most definitely not the "uninvited ear" situation as in the Katz case, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, cited by the plaintiff. Plaintiff's fourth amendment rights were not violated in any way, shape or form because the informer had in his possession a walkie-talkie. That radio device was used solely for the purpose of communicating with the informant. No one utilized it to eavesdrop on the conversation plaintiff had with this informant. The situation was just as if, instead of radio, the informant had utilized a public telephone to contact Postal Inspector Thorn.

Further, the jury certainly did not hear any evidence obtained by the use of the walkie-talkie. There was no jury on December 23, 1966 (contrary to plaintiff's statement), and the trial transcript reveals that at no time was the informant nor the information passed on by him, brought to the attention of the jury. Of course, the stolen items were presented to the jury and the informant passed on the information which led to plaintiff's arrest with those items in his possession. However, the legality and admissibility of that evidence has heretofore been determined by this court and the Court of Appeals. It is sufficient to say that the record conclusively demonstrates that plaintiff's claims in regard to the use of the walkie-talkie are totally without merit.

Point (3): This point relates to plaintiff's right of confrontation vis-a-vis the informer. In relating the facts on which this point is based, plaintiff also claims that Agent Thorn implied that he had the informant's consent to listen in on the conversation between informant and plaintiff, and further that the court permitted the postal inspectors to testify about the information received by the walkie-talkie, and lastly, that the court allowed the government hearsay liberties. Plaintiff then (page 4 of the...