Haier v. United States
Decision Date | 24 July 1964 |
Docket Number | No. 7674.,7674. |
Citation | 334 F.2d 441 |
Parties | George A. HAIER, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
Page Dobson, Oklahoma City, Okl., for appellant.
Benjamin E. Franklin, Asst. U. S. Atty., Topeka, Kan. (Newell A. George, U. S. Atty., Topeka, Kan., was with him on the brief), for appellee.
Before PHILLIPS and SETH, Circuit Judges, and ARRAJ, District Judge.
This is an appeal from an order of the United States District Court for the District of Kansas, dated December 17, 1963, denying appellant's motion under 28 U.S.C.A. § 2255. As grounds for the motion appellant asserted that his confession was coerced and that he was not advised of his constitutional rights at his preliminary hearing. He was represented by appointed counsel during the full hearing given by the trial court. The relief was denied and this appeal was taken.
Appellant entered a plea of guilty in the United States District Court for the District of Kansas to an information containing two counts for forcibly breaking into a building used as a United States Post Office with attempt to commit larceny therein, and for taking and carrying away for his own use with intent to steal and purloin personal property of the United States. Appellant at the time of arraignment and plea was represented by his retained counsel. Pursuant to a plea of guilty to both counts charged, the appellant was on April 11, 1946, sentenced to five years on count 1 and ten years on count 2, the terms to run consecutively.
On March 13, 1951, appellant filed a motion to vacate pursuant to 28 U.S.C. § 2255, and upon hearing the motion was denied. Appellant was later conditionally released from the penitentiary on July 6, 1955, but was returned before the expiration of his release as a mandatory release violator. Appellant was denied relief on June 20, 1963, upon a hearing on his second motion to vacate filed May 7, 1963. On August 15, 1963, appellant filed the present motion to vacate under 28 U.S.C. § 2255 proceeding in forma pauperis. He is presently confined in the United States Penitentiary at Leavenworth, Kansas, where he is serving the balance of the 1946 sentence.
Appellant asserts that inapplicable rules of law were applied by the trial court during the course of the hearing as evidenced by two conclusions of law made by the trial court. These conclusions, which are III and IV, are as follows:
On conclusion III above, the trial court cited United States v. Moore, 166 F.2d 102 (7th Cir.). This cited case concerned a motion made in 1946 to vacate and set aside a 1928 conviction; it was not apparently a motion under § 2255. The court treated the motion as one in coram nobis, and the opinion states: "In the absence of an applicable statute expressly providing limitation, apparently there is no limitation of time within which * * * a motion to vacate may be filed, except that an applicant must show reasonable diligence in presenting his claim." The court held the motion was not timely filed. We have considered the cited opinion but hold that the requirement or condition it expresses should not be applied to motions under § 2255. The statute, when it states that the motion may be made at any time, excludes the addition of a showing of diligence in delayed filings. A number of courts have considered contentions similar to those made here and have concluded that there are no time limitations. This result excludes the requirement of diligence which is in reality a time limitation. In McKinney v. United States, 93 U.S.App.D.C. 222, 208 F.2d 844, a motion in 1953 was made to vacate a 1938 conviction under 28 U.S.C. § 2255, alleging denial of counsel. The court said: In Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, the Supreme Court discussed 28 U.S.C. § 2255. The concurring opinion states: This does not however exclude "a limited discretion in the federal judge to deny relief to an applicant under certain circumstances." Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. The Court there also said in regard to the exhaustion of remedies in habeas corpus proceedings which is applicable here: In the case at bar, however, we do not regard the facts as disentitling the applicant to relief.
As to the conclusion of law IV above to the effect that a showing must be made that on a retrial a different result would follow, the appellant relies on Bistram v. United States, 237 F.2d 243 (8th Cir.). There the...
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