Diaz v. United States

• Citation: 264 F. Supp. 937
• Decision Date: 02 March 1967
• Docket Number: Misc. No. 1234
• Parties: Donald A. DIAZ v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Louisiana

264 F. Supp. 937

Donald A. DIAZ v. UNITED STATES of America.

Misc. No. 1234

United States District Court E. D. Louisiana, New Orleans Division.

March 2, 1967.

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James F. Mulla, Jr., New Orleans, La. (Appointed by the Court) for plaintiff.

John C. Ciolino and Harry F. Connick, Asst. U. S. Attys., New Orleans, La., for defendant.

OPINION

RUBIN, District Judge.

Donald A. Diaz was convicted by a jury on a three-count indictment charging him with importing and bringing marijuana into the United States, in the form of hashish, concealing hashish after it had been imported contrary to law, and having hashish in his possession aboard a U. S. vessel when it was not a part of the ship's cargo or stores. Experienced counsel retained by him represented Diaz at the trial. After the conviction, he was sentenced to five years imprisonment. No motion for a new trial was filed and no appeal was taken. He now seeks relief under 28 U.S.C.A. § 2255. For the reasons set forth below, relief is denied.

Diaz had been a member of the crew of the merchant vessel S. S. GREEN DALE. He was arrested by U. S. Customs Agent Billy D. Tennyson and U. S. Customs Investigator Myers, at about 6:50 o'clock a. m., November 14, 1964.

The vessel had docked in New Orleans after midnight on November 14, 1964. Shortly thereafter Diaz went ashore. Later during the night, he returned to the ship, and went to a room used for storage. One of the ship's officers, Alfred J. Tannler, looked through the porthole and observed Diaz there.

As a result of what he observed, Tannler became suspicious of Diaz and questioned him. Apparently Tannler did not recognize Diaz as a member of the crew. However, Diaz was later able to identify himself. Diaz testified that he was told that he had the right to leave the ship but voluntarily chose to remain. However, the testimony taken at the prior trial indicates that Diaz tried to leave but was forcibly prevented from leaving by Chief Mate Lilly at about 4:25 a. m. This testimony indicates that Lilly summoned two army guards, who were members of the port police. They arrived about 5:30 a. m. and thereafter prevented Diaz from leaving the ship.

At about 6:05 a. m., U. S. Customs Agent Billy Tennyson boarded the ship. He spoke with the ship's officers on duty, went to the spare room, and later went to the quarters of Chief Mate Lilly. About 25 minutes later, after conversation with Chief Mate Lilly and Diaz, Tennyson went to the spare room and, in the presence of Diaz, U. S. Customs Investigator Myers, Third Mate Bruce B. Elfast, the vessel's other third mate, Mr. Bangeman, and others, he took some screws out of the overhead panel in the ceiling of the spare room and found a pillow case containing 11 pounds of hashish.

The testimony at Diaz' trial was to the effect that, as Tennyson removed the pillow case, Diaz said "Well, I'm glad you found it; I'm glad you found it." Shortly thereafter, at 6:50 a. m., Diaz was arrested.

Prior to Diaz' arrest, no one advised him of his right to counsel, or of his right to remain silent, and no one warned him that anything he said might be used as evidence against him.

Diaz was tried in the United States District Court for the Eastern District of Louisiana, on November 18 and 19, 1965, on three counts. He was charged in count one with importing and bringing into the U. S. 11.93 pounds of marijuana in the form of hashish, which was not included in the manifest of the American vessel, the S. S. GREEN DALE, as required by Title XIX, U.S.C. Section 1431, and in violation of Title 21, U.S.C. Section 176a. He was charged in count two with concealing and facilitating the concealment of approximately 11.93 pounds of marijuana, in the form of hashish, knowingly and with intent to defraud the United States, after this marijuana had been imported and brought into the United States contrary to law, knowing it to have been imported and brought into the United States contrary to law, and in violation of Title 21, Section 176a. The third count charged him with having in his possession or control on board the American vessel S. S. GREEN DALE 11.93 pounds of marijuana in the form of hashish, not constituting a part of the cargo, entered into the manifest, or part of the ship's stores of the S. S. GREEN DALE, all in violation of Title 21, § 184a.

Diaz retained Sam Monk Zelden as his lawyer and Mr. Zelden associated Bruce Borrello with him. Mr. Zelden is an experienced lawyer who has been a member of the Louisiana Bar for 33 years. For approximately 20 years he has devoted a large part of his time to the defense of persons accused of violation of criminal laws, in State and Federal courts, and he has had considerable experience in prosecuting appeals in such cases. Mr. Borrello has been a member of the Louisiana Bar since 1961. He has engaged actively in the defense of persons accused of violation of criminal laws.

The issues raised by Diaz in this motion are dealt with separately below. However, since the issues raised by this motion include a charge that the Judge who presided at Diaz' original trial improperly charged the jury and a charge that he was improperly questioned before he was brought before a U. S. Commissioner, the court ordered a transcript of that part of the proceedings in the prior trial relevant to the issues now being raised. While a full transcript was requested by the applicant, it appeared to be unnecessary to have a complete transcript to consider adequately the applicant's claim, and Diaz is not entitled to a transcript beyond what was necessary to enable him adequately to present his motion to vacate to the court. See United States v. Glass, 317 F.2d 200 (4th Cir. 1963). The court finds that this partial transcript of the prior trial was adequate for the purpose.

The court ordered a full evidentiary hearing. During the course of the hearing, the testimony advanced suggested additional issues which had not been raised by the petition. The Court granted petitioner additional time to develop these issues and to summon witnesses to testify with regard to any claim that the petitioner might have for relief, whether or not raised by the petition filed. It is the court's opinion that the petitioner is not entitled to relief on any of the grounds suggested by him. In reaching this conclusion, the court considered each of the following issues.

I. Collateral Attack

The grounds raised by applicant, when analyzed in detail, do not entitle him to the relief sought. But it should be noted at the outset that the purpose of Section 2255 was simply to provide a remedy in the sentencing court coextensive with the one previously available by habeas corpus in the court of the district where the prisoner was confined. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). The scope of the remedy is described in Howell v. United States, 172 F.2d 213, 215 (4th Cir. 1949) by Chief Judge Parker, the Chairman of the Judicial Conference Committee, which proposed Section 2255, as follows:

"* * * It is elementary that neither habeas corpus nor motion in the nature of application for writ of error coram nobis can be availed of in lieu of writ of error or appeal, to correct errors committed in the course of a trial, even though such errors relate to constitutional rights. It is only when there has been the denial of the substance of a fair trial that validity of the proceedings may be thus collaterally attacked or questioned by motion in the nature of petition for writ of error coram nobis or under 28 U.S.C.A. § 2255."

See also Killebrew v. United States, 275 F.2d 308 (5th Cir. 1960).

The motion to vacate a sentence under Section 2255 is in form a direct attack. But it is limited to those matters that may be raised by collateral attack on the original conviction. Haynes v. United States, 339 F.2d 30 (5th Cir. 1964), cert. den. 85 S.Ct. 926, 380 U.S. 924, 13 L.Ed.2d 809; Huizar v. United States, 339 F.2d 173 (5th Cir. 1964), cert. den. 380 U.S. 959, 85 S.Ct. 1099, 13 L.Ed.2d 975; Schmidt v. United States, 286 F.2d 11 (5th Cir. 1961); Arthur v. United States, 230 F.2d 666 (5th Cir. 1956).

Thus, for example, error in instructing the jury at the trial, here alleged as justifying relief, is not a matter which is subject to collateral attack. Rush v. United States, 225 F.Supp. 843 (D.C.La.1964); West v. United States, 217 F.Supp. 391 (D.C.D.C.1963), affirmed 117 U.S.App.D.C. 90, 326 F.2d 633. And collateral attack will not be permitted where appellant made no effort to suppress illegally obtained evidence prior to or during his trial. See Armstead v. United States, 318 F.2d 725 (5th Cir. 1963).

Unreasonable "delay in taking an accused before a commissioner, though illegal, does not invalidate a conviction in the absence of prejudice resulting from the detention." Morse v. United States, 256 F.2d 280 (5th Cir. 1958). Nor is such a detention the proper subject of collateral attack asserted against a conviction resulting from a trial not infected by denial of constitutionally guaranteed rights. Kristiansand v. United States, 319 F.2d 416 (5th Cir. 1963). See also Adkins v. United States, 298 F.2d 842 (8th Cir. 1962); Mitchell v. United States, 110 U.S.App.D.C. 462, 293 F.2d 161 (1961); Kent v. United States, 272 F.2d 795 (1st Cir. 1959).

The jurisprudence relating to collateral attack on a conviction obtained through alleged illegal search was fully reviewed by the Court of Appeals for the District of Columbia in Thornton v. United States, 368 F.2d 822 (D.C. Cir. 1966). The Court there held that "a claim by a federal prisoner that evidence admitted at his trial was the fruit of an unconstitutional search or seizure is not properly the ground of a collateral attack on his conviction." This was but the reaffirmation of that court's earlier view that the normal method of correcting trial errors, even as to constitutional...