Houser v. U.S.

Decision Date11 December 1974
Docket NumberNo. 74-1359,74-1359
Citation508 F.2d 509
PartiesFrank HOUSER and Winnie Houser, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Daniel P. Reardon, Jr., St. Louis, Mo., for appellants.

Frederick J. Dana, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

GIBSON, Chief Judge.

Frank and Winnie Houser, husband and wife, were jointly arrested, tried, and convicted by a jury of possession of heroin with intent to distribute. On March 16, 1973, each defendant was sentenced to a term of five years imprisonment to be followed by a three year special parole term. A notice of appeal was filed March 19, 1973. That appeal was dismissed May 4, 1973, in accordance with Local Rule 13 for failure to prosecute.

Defendants now appeal the District Court's denial of their 28 U.S.C. 2255 motion to vacate their sentences which alleged various errors in the conduct of their trial. 1

28 U.S.C. 2255 provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

It is not contended that the court was without jurisdiction or that the sentence imposed was in excess of the statutory maximum. The Housers' prayer for relief depends then on whether their sentences were 'imposed in violation of the Constitution or laws of the United States' or are 'otherwise subject to collateral attack.'

Those matters which can be raised as collateral attacks have seen a steady expansion since the enactment of 2244 in 1948. The purpose underlying the enactment of 2255 was to eliminate procedural abuses, harassments, and unseemly delays in the processing of habeas corpus actions. 2 This was to be accomplished by shifting the hearing of habeas actions from the district where the petitioner was in custody to the more convenient forum, in terms of the availability of records and witnesses, of the sentencing court. Hill v. United States, 368 U.S. 424, 427-428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Lee v. United States, 501 F.2d 494 (8th Cir. 1974). This section was held constitutional as being merely a 'jurisdictional bill,' United States v. Hayman, 342 U.S. 205, 218, 72 S.Ct. 263, 96 L.Ed. 232 (1952), with the remedies available under 2255 being 'exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined.' Hill v. United States, supra, 368 U.S. at 427, 82 S.Ct. at 471.

The federal remedy of habeas corpus had fof many years been limited to cases where a conviction was void for want of jurisdiction in the trial court. See Frank v. Mangum, 237 U.S. 309, 327, 35 S.Ct. 582, 587, 59 L.Ed. 969 (1915):

The writ of habeas corpus will lie only in cases the judgment under which the prisoner is detained is shown to be absolutely void for want of jurisdiction in the court that pronounced it * * *.

An indication of expansion appears in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Justice Holmes (a dissenter in Frank v. Mangum) determined that habeas corpus would lie to secure to petitioners their constitutional rights. Moreover, it was further determined that the petitioners' allegations in Moore, if true, would have made the trial absolutely void. Moore v. Dempsey, supra, 261 U.S. at 92, 43 S.Ct. 265, 67 L.Ed. 543. It was 1942 before the Supreme Court clearly acknowledged that habeas corpus relief 'extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.' Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 966, 86 L.Ed. 1302 (1942).

A 2255 motion is available only upon grounds that would warrant the granting of a writ of habeas corpus. Taylor v. United States, 229 F.2d 826, 832 (8th Cir.), cert. denied, 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). As the absence of jurisdiction in the sentencing court is set out in 2255 as a distinct ground for relief, the meaning attributable to the phrases 'imposed in violation of the Constitution or laws of the United States' or 'otherwise subject to collateral attack' must have reference to the expansion of habeas corpus jurisdiction foretold by Moore, announced in Waley, and continued to the present day.

The line of demarcation between a sentence 'imposed in violation of the Constitution or laws of the United States' or one which is 'otherwise subject to collateral attack' has never been clearly delineated in the cases. In reviewing the adjudicated cases when the court has granted or denied relief, it is seldom clear upon what ground the decision of the court rests. However, a framework for analysis of the differences between a sentence 'imposed in violation of the Constitution or laws of the United States' and one 'otherwise subject to collateral attack' can be gleaned from the decided cases.

Cognizable under the ground of 'violation of the Constitution or laws of the United States' are claims of a violation of a specific constitutional guarantee. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 223, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). The Supreme Court has recently indicated that not only claims of Constitutional violations are cognizable under this ground in 2255 but also claims of violation of the 'laws of the United States' when the claimed error was 'a fundamental defect which inherently results in a complete miscarriage of justice.' Davis v. United States, supra, 417 U.S. at 346, 94 S.Ct. at 2305, quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). 3

What then is cognizable under the ground of 'otherwise subject to collateral attack?' It was noted in 1961 that the boundaries of that phrase had not been defined, save that 'mere error' is not enough. Kyle v. United States, 297 F.2d 507, 511 n. 1 (2d Cir. 1961). This ground still lacks definition but must have reference to those 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' Hill v. United States, supra at 428, 82 S.Ct. at 471, quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 455 (1939). See United States v. Lewis, 392 F.2d 440, 443 (4th Cir. 1968), where the court stated that:

Rare as well as unprecedented conditions-- well termed 'exceptional circumstances'-- we think are embraced in 2255's words '(otherwise subject to) collateral attack.'

It is one thing to note that there must be a 'fundamental defect which inherently results in a complete miscarriage of justice' or 'exceptional circumstances' before a conviction may be collaterally attacked and another to apply that principle to particular claims. However, in the 26 years which have elapsed since enactment of 2255 the courts have had occasion to consider what seems like almost every conceivable or inconceivable claim of error in the context of these collateral proceedings. What basically was to be an inquiry into the fairness of the trial has been expanded to litigate collaterally any alleged errors occurring before, during, and after trial. We think review of what is or should be congnizable in a collateral attack, as expressed in federal cases, might prove of interest and possibly save the courts and petitioners time as well as assist in the administration of justice.

To provide a quick reference for the district courts called upon to determine whether a particular matter is cognizable under 2255 we set forth the following, with the full knowledge that these decisions are not etched in stone. For matters not settled it must be recognized that any decision which allows or refuses collateral attack rests upon a choice between achieving finality and assuring substantial justice in each case. This principle was well expressed by Judge Leventhal in Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822, 825-26 (1966):

Whether collateral attack is permissible depends on the nature of the constitutional claim, the effectiveness of the direct remedies, and the need for choices among competing considerations in quest of the ultimate goal of achievement of justice. The decision is not predetermined by the absolute availability of judicial power, but reflects the need to fathom and delineate the claims and circumstances that make the exercise of power appropriate. The courts are called on to evolve and provide procedures and remedies that are effective to vindicate constitutional rights. However, where effective procedures are available in the direct proceeding, there is no imperative to provide an additional collateral review, leaving no stone unturned, when exploration of all avenues of justice at the behest of individual petitioners may impair judicial administration of the federal courts, as by making criminal litigation interminable and diverting resources of the federal judiciary.

However, the Supreme Court has made it clear that in making this choice, the principle of finality is not entitled to any great weight. See Kaufman v. United States, 394 U.S. 217, 228, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).


It is firmly established that 2255 cannot be used as a substitute for a direct appeal from a conviction. 4 Several times this court has quoted with approval the following from Taylor v. United States, 177 F.2d 194,...

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