Dillon v. United States

• Decision Date: 22 June 1964
• Docket Number: Civ. No. 61-349.
• Citation: 230 F. Supp. 487
• Parties: Edward J. DILLON, Plaintiff, v. UNITED STATES of America, Defendant. In re STRAYER.
• Court: U.S. District Court — District of Oregon

230 F. Supp. 487

Edward J. DILLON, Plaintiff, v. UNITED STATES of America, Defendant In re STRAYER.

Civ. No. 61-349.

United States District Court D. Oregon.

June 22, 1964.

COPYRIGHT MATERIAL OMITTED

Clifford N. Carlsen, Jr., Portland, Or., for Manley B. Strayer.

Sidney I. Lezak, Acting U. S. Atty. for Oregon, Portland, Or., for the United States.

EAST, District Judge.

In these Title 28 U.S.C.A. § 2255 proceedings, Edward J. Dillon (Dillon) sought to set aside his judgment of conviction and sentence of 18 years' imprisonment for armed bank robbery on a premise in the main that the United States Attorney had secured his plea of guilty to the crime upon a promise of a sentence of imprisonment not to exceed 10 years. The Court had at a prior time heard the same contention in a Rule 35, F.R.Crim.P. proceedings whereat Dillon was represented by counsel, resulting in a denial of relief. The Court again heard the contentions in these proceedings when Dillon (although at midhearing he had requested counsel), was not represented by counsel, and was again denied relief.

The Court of Appeals for the Ninth Circuit, 307 F.2d 445 (Aug. 22, 1962), reversed this Court's denial of relief in these proceedings, holding "* * * that it was clear error to refuse (Dillon, an indigent prisoner) request for a lawyer * * *" to prosecute the proceedings, and remanded the cause for consistent proceedings.

Thereafter, this Court, in proceedings held in open court see Appendix A, declared that the remand was "* * * tantamount to a direct command to me to order a member of the bar of this court to represent Dillon throughout a rehearing of his § 2255 civil proceedings * * *"; and thereupon appointed Mr. Manley B. Strayer, an attorney of the highest standing and stature and extended experience at the bar of this court, and directed him to represent Dillon in Dillon's claims and contentions of a denial of his Constitutional rights, allegedly culminating in his unlawful conviction and sentence. Thereafter, the cause was re heard de novo, with Mr. Strayer acting throughout as attorney for Dillon (attorney), resulting in an order setting aside the original sentence but not the plea of guilty and conviction of Dillon, and a resentencing to a like term of imprisonment of 18 years, with full credit for time and allowances gained and accrued under the original sentence, and eligibility for parole.¹

Thereafter, the attorney, upon the suggestion and invitation of this Court, petitioned for reasonable compensation for his services performed and expenses incurred as court-appointed counsel for the indigent Dillon, whereupon the Court ordered see Appendix B:

"* * * that the Attorney General of the United States appear, by and through The Honorable Sidney I. Lezak, Acting United States Attorney for the District of Oregon, on or before 45 days from the date hereof, to show cause, if any there be, why judgment should not be entered against the United States and in favor of Manley B. Strayer for such amount as may be determined by the Court to be reasonable compensation and fees for his services and expenses performed and incurred as court-appointed counsel herein, * * *."

At the hearing, the attorney was granted leave to file herein his supplemental application and claim for just compensation in the amount of $5,000.00 for services and the amount of $24.50 expenses incurred.

The Court having received the testimony and evidence offered in support of the claim and considered the statements and advice of counsel, and now being advised in the premises, enters this memorandum of decision.

At the outset it must be made crystal clear that this Court is in no wise ignoring, outmoding or otherwise disparaging or relaxing the professional ethical obligation of attorneys admitted to the bar of this state and district to at all times freely give of their professional efforts, services, and time, without regard to cause or compensation, upon appropriate request of persons and the Court. The attorney and his able counsel in this phase of the proceedings, Mr. Clifford N. Carlsen, Jr., are acting in accordance with the highest traditions and ethics of the profession to give aid to this Court in dealing, as we are, with only the Constitutional rights of attorneys to be justly compensated in return for their professional expertise, service, time, and personal expense upon the direct order of the Court, in compliance with its duty to furnish and provide an indigent person due process in connection with criminal charges and conviction.

This is no time to quarrel over niceties of distinction as to whether these proceedings are civil or criminal in nature.² The simple fact is that Dillon was here seeking relief through Congressional streamlined proceedings from a judgment of conviction and sentence of imprisonment under the claim that the judgment was had and obtained through a denial of due process in the criminal proceedings and that he is an indigent person without funds to employ counsel of his own choosing.

While it may not have been so two short years ago, no one can now question the inescapable logical result that if an indigent person charged with serious crime is entitled as a matter of Constitutional right to counsel throughout trial prior to judgment of conviction, he must be likewise entitled to counsel as a matter of Constitutional right in obtaining judicial relief from an unconstitutional judgment of conviction by reason of a denial of due process occurring at the time he was entitled to trial counsel.

The attorney purely and simply asserts that his services, office, and out-of-pocket expense have been commandeered and taken by the government for a public use and claims just compensation therefor under the Fifth Amendment to the Constitution. The Attorney General advises that the Court has no authority to fix compensation and order the United States to pay such to the attorney for his legal services, and I would agree, only to the extent that as far as we are all now advised, there is no present federal judicial pronouncement that this Court does have such authority. The Attorney General further advises the Court that only Congress can authorize and direct the expenditure of public money for the payment of compensation to the members of the bar called upon to represent indigent criminal defendants, and advises that Congress is now engaged in the process of providing for such authority and direction to the federal judiciary.³ I do not understand that the United States district courts have no authority to order the United States to comply with the Fifth Amendment to the United States Constitution and pay just compensation for property taken for a public use merely because Congress has failed to provide Congressional direction and implementation for such payment; quite the contrary, I understand that it is for the United States district courts to decide, when presented with a claim for such, whether:

(a) There has been in fact a "taking" and whether

(b) The use of such taking is in fact a public use, regardless of whether the taking was pursuant to a declaration and implementation therefor by Congress. In support of this understanding as to the "taking," I refer to United States v. Finn, 127 F.Supp. 158, at p. 167 (S.D. Cal.1954); and Armstrong v. United States, 364 U.S. 40, pp. 48-49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). Finn cites Campbell v. United States, 266 U.S. 368, pp. 370-371, 45 S.Ct. 115, 69 L.Ed. 328 (1924), which I pinpoint only to place before us the jurisprudential thrust of that decision and of the decisions analyzed in support thereof. The thrust is simply this — where an officer of the army, acting under orders of the Secretary of War and without obtaining the owner's consent or instituting condemnation proceedings or making any compensation therefor, took possession of the owner's land, there arose an implied promise by the United States to compensate the owner of this loss, whereupon the owner became entitled to have the just compensation, as safeguarded by the Fifth Amendment. The decision analyzed is United States v. Lynah, 188 U.S. 445, 464, 465, 23 S.Ct. 349, 355, 47 L.Ed. 539 (1903), which advises us:

"The rule deducible from these cases is that when the government appropriates property which it does not claim as its own, it does so under an implied contract that it will pay the value of the property it so appropriates. * * * The government may take personal or real property whenever its necessities, or the exigencies of the occasion, demand * * *, but the Constitution in the 5th Amendment guarantees that when this * * * right of appropriation is exercised it shall be attended by compensation."

Two of "these cases" referred to in Lynah — United States v. Palmer, 128 U. S. 262, 9 S.Ct. 104, 32 L.Ed. 442 (affirming Ct.Cl.1888); and United States v. Berdan Fire-Arms Mfg. Co., 156 U.S. 552, 15 S.Ct. 420, 39 L.Ed. 530 (affirming Ct.Cl.1895), are of specific interest to us. In each of these two cases, a patentee claimant recovered "reasonable compensation" under the implied-contract theory for the use of his invented improvements to infantry equipment which had been adopted by the Secretary of War without Congressional declaration of need or use, or other implementation or prior condemnation proceedings. This was, pure and simple, a judicial declaration, as distinguished from a Congressional declaration, of a taking for a public use in fact. We would do well to acknowledge the truism that a design or concept of a mechanical improvement to fire-arms and its work product or function, acquired by the appropriation and use of that design or concept, is the end result of the appropriation and use of the time, effort and expertise of the inventor.

In Armstrong, supra, the United States, through default remedies of a boat-building contract, acquired the title to certain naval boats, and by reason of the government's immunity to...