Ex parte Atkinson

• Decision Date: 07 June 1949
• Docket Number: Crim. No. 17388,17410.
• Citation: 84 F. Supp. 300
• Court: U.S. District Court — District of South Carolina
• Parties: Ex parte ATKINSON. UNITED STATES v. ATKINSON.

84 F. Supp. 300

Ex parte ATKINSON.

UNITED STATES v. ATKINSON.

Crim. Nos. 17388, 17410.

United States District Court E. D. South Carolina, Alken Division.

June 7, 1949.

W. Croft Jennings, Columbia, S. C., for petitioner.

Ben Scott Whaley, United State Attorney, Charleston, S. C., Louis M. Shimel, Assistant United States Attorney, Charleston, S.C., for United States of America.

WYCHE, Chief Judge.

The petitioner petitions the Court to vacate the judgment and sentence in the above cases under the provisions of Section 2255, 28 U.S.C.A., upon the ground, among others, that he was not guilty of the offense charged in the indictment and information to which he plead guilty.

The motion of the petitioner, files and records in the cases did not conclusively show that the petitioner was not entitled to relief, and for this reason I caused notice of the petitioner's motion to be served upon the United States Attorney, who, in due time, filed his return in opposition to the motion, copy of which was ordered to be served upon petitioner, and upon his application for counsel, I appointed W. Croft Jennings, Esq. of Columbia, South Carolina, as counsel to represent the petitioner in this proceeding.

From the motion of the petitioner and the return of the United States Attorney I find the following facts: An indictment was returned against the petitioner in the Eastern District of South Carolina in which he was charged with transporting "a stolen motor vehicle, to wit, a 1948 Ford ¾ ton pickup truck, Motor No. 71238, the property of one D. C. Jones, from Columbia, State of South Carolina, in the Eastern District of South Carolina, to Augusta, State of Georgia, and he then knew the motor vehicle to have been stolen." An information was filed against petitioner in the Western District of North Carolina, in which it was alleged that he "did steal and transport in interstate commerce one 1948 Chevrolet Sedan, Motor No. FAM-127053, from Charlotte, North Carolina to Greenville, South Carolina, knowing same to have been stolen, in violation of Title 18, Section 408, United States Code", and, by consent, this case was transferred to the Eastern District of South Carolina for trial; competent and experienced counsel was appointed by the Court to represent petitioner at the trial; petitioner was furnished with copy of the indictment and copy of the information and was advised of the specific charges against him, as contained therein; after a conference between the petitioner and his counsel, the petitioner waived arraignment and plead guilty to the indictment and to the information, after which sentence was duly imposed; at no time did petitioner's counsel, or anyone in the presence of petitioner's counsel, or anywhere else, tell the petitioner that he was charged in the indictment and information with uttering worthless checks; the petitioner was advised by his counsel that it was his privilege to plead not guilty, in which event his counsel advised him that he would defend him to the best of his ability; after considering the matter the petitioner voluntarily decided to plead guilty; the petitioner acquired possession of and title to seven automobiles by giving worthless checks in the purchase of the same to the owners thereof. The admitted facts with reference to the charge in the indictment are as follows: Petitioner purchased a 1947 Chevrolet Aero Tudor Sedan from the owner at Charleston, South Carolina. A worthless check in the amount of $2,200 was given by petitioner in payment for it. This check was drawn on the First National Bank of Atlanta, Georgia. The 1947 Chevrolet Sedan was then driven to Columbia, South Carolina, where it was traded by petitioner for a 1948 Ford pick-up truck (the motor vehicle described in the indictment) and an additional $150 in cash. This 1948 Ford pick-up truck was then driven from Columbia, South Carolina, to Savannah, Georgia, where it was sold for $1500 cash. The admitted facts with reference to the charge in the information are as follows: Petitioner purchased a 1948 Chevrolet Aero Tudor sedan from the owner at Charlotte, North Carolina, in payment for which he gave a worthless check in the amount of $2500 drawn on the First National Bank of Atlanta, Georgia. This car was then driven to Greenville, South Carolina, where it was sold for $2375, cash. At the time the petitioner plead guilty to the indictment and information in these cases he thought that the fraudulent manner in which he obtained possession and title to the automobiles and transported them in interstate commerce constituted a violation of the National Motor Vehicle Theft Act; there is no evidence to sustain the allegation of the petitioner that he did not obtain a fair trial or a fair hearing; there is no evidence to support the contention that any of his constitutional rights were violated; the court had jurisdiction of the petitioner and jurisdiction of the offense charged in the indictment and information lodged against him.

It is contended by the United States Attorney that neither habeas corpus nor a proceeding under Section 2255, 28 U.S.C. A., can be used as a substitute for appeal and will not lie either to examine the sufficiency of the evidence to support a conviction, or to inquire, whether, when an indictment or information to which the defendant entered a guilty plea, does state an offense, or the actual facts really constitute an offense as a matter of statutory construction, and that while the Court might have held that obtaining automobiles on the strength of bogus checks does not constitute larceny, the petitioner is not in a position to raise the question at this time. To sustain his contention he cites the following cases: Kelly v. Johnston, 9 Cir., 128 F.2d 793; Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982.

Section 2255 is a new section and is a proceeding in the nature of a writ of error coram nobis. It was intended to correct an erroneous sentence without resort to habeas corpus. A motion for such relief may be made at any time. This procedure to enable a trial court to correct its own judgment when found by it to have been based upon an error of fact not apparent on the common law record has long been recognized at common law. The writ of error coram nobis brings the error of fact directly before the trial court. The function of a coram nobis proceeding is to bring to the attention of the court and to obtain relief upon errors of fact, or a valid defense existing in fact but which, without negligence of the defendant, was not made either through duress, fraud, or excusable mistake of such a character that if known in time would have prevented the rendition of the judgment. People v. Gleitsman, 396 Ill. 499, 72 N.E.2d 208. Generally, the purpose of coram nobis is to bring to the court's attention some fact which was unknown to the court, and if known, would have resulted in a different judgment. It was designed, not...