Dranow v. United States

• Decision Date: 12 March 1969
• Docket Number: No. 19298.,19298.
• Citation: 407 F.2d 47
• Parties: Benjamin DRANOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

407 F.2d 47 (1969)

Benjamin DRANOW, Appellant, v. UNITED STATES of America, Appellee.

No. 19298.

United States Court of Appeals Eighth Circuit.

February 17, 1969.

Rehearing Denied March 12, 1969.

Scott E. Jarvis, Topeka, Kan., for appellant; Benjamin Dranow, pro se.

William E. Falvey, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Patrick J. Foley, U. S. Atty., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and BRIGHT, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

Benjamin Dranow, herein called defendant for convenience, has taken this timely appeal from final order entered January 19, 1968, denying and dismissing his 28 U.S.C.A. § 2255 motion to vacate convictions, judgments and sentences imposed in three cases tried in the District of Minnesota. The prior convictions attacked are briefly described as follows:

(1) Mail and wire fraud conviction in August 1961 (4-61-Criminal 12). Conviction affirmed. Dranow v. United States, 8 Cir., 307 F.2d 545.

(2) Income tax conviction in 1962 (4-61-Criminal 114). Appeal dismissed.

(3) Bail jumping conviction (4-62-Criminal 110) tried in 1963. Conviction affirmed, Dranow v. United States, 8 Cir., 325 F.2d 481, cert. denied 376 U.S. 912, 84 S.Ct. 669, 11 L.Ed.2d 610.

The basis asserted for relief in the motion is that defendant was mentally incompetent to stand trial at the time of the trial of the cases just listed. Defendant's principal complaint on this appeal is that the trial court erred in dismissing his motion without affording him an evidentiary hearing.

Defendant at the time of the filing of his § 2255 motion was serving his sentences at the United States Medical Center at Springfield, Missouri. The motion contains much extraneous material criticizing various officials connected with his convictions and complains about alleged mistreatment at the hospital. The claim of incompetency at time of trial consists of a bald unsupported conclusion. The court in its dismissal order states: "In the so-called bail-jumping case (4-62 Criminal 110), this Court held a hearing on January 18 and 19, 1963, as to his mental competency to stand trial and found that he had a rational as well as a factual understanding of the proceedings pending against him."

Judge Nordbye, who heard the present motion, heard the bail jumping case. The history of that case is set out in our reported opinion found at 325 F.2d 481. Defendant waived a jury trial and was tried to the court and convicted. Thereafter, defendant made a contention that he did not knowingly and intelligently waive his right to trial by jury because he was mentally incompetent to waive a jury. In reviewing such motion, we said:

"There is no substance to defendant\'s conclusion that he was incompetent to waive a jury. At a hearing on a motion for continuance on the ground that defendant was mentally incapable to go to trial, testimony of psychiatrists offered by both the Government and the defendant was received. At the conclusion of such hearing, based upon such testimony and the court\'s observance of the defendant on a number of occasions, the court entered an extensive memorandum opinion, reviewing the testimony, and determining that the defendant was competent to stand trial.

"In the final judgment of conviction, the court again reviewed the question of defendant\'s competency and found him to be competent. Such findings are supported by substantial evidence. No attack is here made upon the rulings upon the motion for continuance or upon the determination of defendant\'s competency to stand trial." 325 F.2d 481, 483.

Thus it clearly appears that defendant's competency to stand trial on the bail jumping charge was raised, fully considered and adjudicated in that case. Mental competency to stand trial cannot be raised by a § 2255 motion when such issue has been raised and adjudicated in the trial resulting in the conviction. Bradley v. United States, 8 Cir., 347 F.2d 121, 123; Richards v. United States, 8 Cir., 342 F.2d 962, 963; Simmons v. United States, 8 Cir., 253 F.2d 909, 912.

So far as it appears in the record, no mental incompetency to stand trial issue was raised in the mail fraud case or in the income tax evasion case. Defendant was represented by competent employed counsel in each of the...