Hayes v. United States, Civ. A. No. H-77-186.

• Decision Date: 06 March 1979
• Docket Number: Civ. A. No. H-77-186.
• Parties: Russell Lee HAYES, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Texas

468 F. Supp. 179

Russell Lee HAYES, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. H-77-186.

United States District Court, S. D. Texas, Houston Division.

March 6, 1979.

COPYRIGHT MATERIAL OMITTED

Russell Lee Hayes, pro se.

Arthur Amdur, James R. Gough, Asst. U. S. Attys., Houston, Tex., for defendant.

MEMORANDUM OPINION AND FINDINGS OF FACT

COWAN, District Judge.

I. The Issue and Coram Nobis Generally

The principal issue in this coram nobis proceeding is whether the plaintiff, Russell Lee Hayes, at the time of his trial in February, 1957, was mentally competent to stand trial. The United States' counterclaim raises the issue of whether Mr. Hayes has abused the writ. The undersigned, on the basis of a full factual record, has determined that Hayes was fully competent and that he has grossly abused the writ.

Coram nobis is available as a remedy for setting aside a constitutionally infirm criminal judgment even though the sentence imposed has been served. In fact, coram nobis normally lies only when the movant is no longer in federal custody. See Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir. 1973); United States v. Brown, 413 F.2d 878 (9th Cir. 1969). Coram nobis is not specifically authorized by any statute enacted by Congress though it was available at common law to correct errors of fact. The courts derive their power to grant such a remedy from the all-writs section of the Judicial Code, 28 U.S.C. § 1651(a). See United States v. Morgan, 346 U.S. 502, 507, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Cline v. United States, 453 F.2d 873 (5th Cir. 1972). Despite express abolition of coram nobis relief in federal civil actions under Federal Rules of Civil Procedure, Rule 60(b), it is still available with respect to criminal convictions. United States v. Morgan, supra. Coram nobis is only available to correct errors of the most fundamental character. Id.

II. Historical Background

The files and records in petitioner's prior cases are significant. They are summarized here in the hope that they may save some future judge the labor of retracing Hayes' post-conviction legal efforts.

On March 8, 1957, before the Honorable Joe Ingraham, Russell Lee Hayes was found guilty of unlawfully preparing and submitting false income tax returns in violation of 26 U.S.C. § 7207 and making fraudulent claims against the United States in violation of 18 U.S.C. § 287; and he was sentenced to a total of six years' imprisonment.

The first motion for relief was entered April 1, 1958. Hayes claimed that there was "not probable cause for believing the existence of the grounds on which the warrant was issued," and that his conviction was based on an IRS conspiracy. The motion was denied by Judge Ingraham. No appeal was taken.

On May 7, 1958, Hayes moved to vacate sentence under 28 U.S.C. § 2255 and again raised the warrant issue in claiming that government agents entrapped him by planting government checks in his mail box and listing the checks on a search warrant as having been stolen. For the first time, Hayes made assertions regarding his appointed counsel. The motion was denied by Judge Ingraham. Subsequently, the district court denied Hayes' application for leave to appeal in forma pauperis on the ground that the appeal was without merit and was not taken in good faith. On appeal, the district court's judgment was upheld and the defendant's appeal was dismissed on the finding by the Fifth Circuit Court of Appeals that the issues presented had no merit, and the appeal was frivolous. Hayes v. United States, 258 F.2d 400 (5th Cir. 1958), cert. denied, 358 U.S. 856, 79 S.Ct. 87, 3 L.Ed.2d 89 (1958).

On April 22, 1959, Hayes filed a third motion raising substantially the same issues raised in the two prior motions. The motion was denied by Judge Ingraham, and no appeal was taken.

In February of 1963, Hayes filed a fourth motion to vacate judgment under 28 U.S.C. § 2255 on the grounds that he was denied due process by the action of the trial court in forcing a court-appointed attorney on him when he had counsel of his own choosing. The record in this proceeding demonstrates the falsity of Hayes' allegations in that proceeding. On April 10, 1963, the district court dismissed the motion on the basis that the prior denial of defendant's motions and affirmance by the Fifth Circuit was controlling. Hayes appealed in forma pauperis from that dismissal. The Fifth Circuit held that since res judicata, as such, has no application in § 2255 proceedings under Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the appellate court's dismissal of appellant's previous appeal was of no legal consequence and, therefore, the district court would be required to hold a hearing to resolve the factual issue raised. Hayes v. United States, 323 F.2d 954 (5th Cir. 1963). The case was remanded to the district court. Shortly thereafter, Hayes filed an affidavit of prejudice against Judge Ingraham. As a result, the case was transferred to the Honorable Allen B. Hannay.

Subsequently, the United States filed a suggestion of mootness which informed the Fifth Circuit that Hayes was no longer in custody. The circuit court noted that this was a factual issue for the district court to determine upon the November 1, 1963 remand. Hayes v. United States, 325 F.2d 1022 (5th Cir. 1964).

On November 8, 1965, the district court, speaking through the Honorable Allen B. Hannay, denied relief to Hayes on grounds of mootness since Hayes had been unconditionally released from custody and thus could not rely on 28 U.S.C. § 2255. United States v. Hayes, 293 F.Supp. 625 (S.D.Tex. 1965). The district court did, however, go forward on alternative grounds to reach the substantive issues of Hayes' motion, and held that the "petitioner's contentions are without support in law or in fact." Id. at 627. No appeal was taken.

In 1968, Hayes filed a petition (his fifth), in the nature of a writ of coram nobis seeking to set aside his conviction on the grounds that the district judge forced court-appointed counsel on him when he had already retained counsel. Hayes v. United States, 293 F.Supp. 628 (S.D.Tex. 1968). The district court, Judge Hannay, denied the petition because the court had given full judicial consideration to these same substantive issues in the earlier cause of United States v. Hayes, 293 F.Supp. 625 (S.D.Tex.1964). On appeal, the Fifth Circuit affirmed the district court's denial of the writ of coram nobis. Hayes v. United States, 416 F.2d 23 (5th Cir. 1969). The record in this proceeding reveals the correctness of those decisions because it is manifest that no attorney was "forced" on Hayes and that he cooperated fully with his court-appointed attorney and participated actively in his own defense.

At this stage, the case was transferred to the docket of the Honorable Ben C. Connally. On February 1, 1972, Hayes filed his sixth motion (a writ of coram nobis) to set aside his 1957 conviction. Hayes asserted that (1) his appointed counsel was incompetent; (2) that he was denied due process of law by the action of the trial judge in appointing counsel in his behalf since he had himself retained counsel and never waived his right to be represented by same; and (3) that the arrest and search warrant issued incident thereto were illegal since the warrant was issued on a falsely sworn affidavit and without sufficient probable cause. Hayes claimed that these factors were part of a conspiracy by the IRS to "frame" him for a crime he did not commit. On February 6, 1973, Judge Connally entered a memorandum and order dismissing Hayes' motion on the merits and therein stated that the court would not entertain further motions of this nature by the petitioner. Hayes v. United States. No. 72-H-136 (S.D.Tex., filed February 1, 1972). Hayes began the appeal procedure, but his appeal was dismissed for want of prosecution on May 15, 1973.

On July 30, 1975, Hayes filed his seventh motion to set aside his 1957 conviction. His grounds were: (1) denial of a right of self-representation at trial, and (2) the district court was without jurisdiction to try, convict or sentence him. On October 29, 1975, Judge Connally filed a memorandum/order and judgment dismissing Hayes' motion and taxing him with the costs of commencement of the action. Hayes v. United States, No. 75-H-1310 (S.D.Tex., filed July 30, 1975). The decision was appealed, and the dismissal affirmed by the Fifth Circuit on May 4, 1976, in a per curiam decision. Hayes v. United States, No. 75-4220 summary calendar (5th Cir. 1976).

The Honorable Ben C. Connally died, and the case was transferred to the Honorable Woodrow Seals. On February 1, 1977, Hayes filed his eighth motion to set aside the 1957 judgment of conviction. The basis for such motion was that the defendant Hayes was incompetent to stand trial at the time of his 1957 criminal trial. On September 19, 1977, Judge Seals denied Hayes' motion, and on September 28, 1977, Hayes filed a motion for rehearing. On October 21, 1977, the case was transferred to the docket of the undersigned, who thereafter set aside the earlier order of Judge Seals. On April 4, 1978, a full evidentiary hearing was ordered so as to resolve the question of competency to stand trial in 1957. This matter came on to be heard in this court on January 18, and 22, 1979.

III. Legal Background

A. Competency Question during 1957 Trial

In the criminal case of 1957, Judge Hannay did not require Hayes to undergo a mental examination to determine his competency to stand trial. The prosecutor in that case had moved for such an examination under 18 U.S.C. § 4244 which states:

Whenever after arrest and prior to the imposition of sentence or prior to the expiration of any period of probation the United States Attorney has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally

...