Jeffers v. United States

• Decision Date: 22 May 1978
• Docket Number: No. H 77-393,H 77-423 and H 77-26.,H 77-393
• Citation: 451 F. Supp. 1338
• Parties: Nathaniel JEFFERS v. UNITED STATES of America. Clinton BUSH v. UNITED STATES of America. Paul James GRIFFIN, Jr. v. UNITED STATES of America.
• Court: U.S. District Court — Northern District of Indiana

451 F. Supp. 1338

Nathaniel JEFFERS v. UNITED STATES of America.

Clinton BUSH v. UNITED STATES of America.

Paul James GRIFFIN, Jr. v. UNITED STATES of America.

Nos. H 77-393, H 77-423 and H 77-26.

United States District Court, N. D. Indiana, South Bend Division.

May 22, 1978.

COPYRIGHT MATERIAL OMITTED

Nathaniel Jeffers, pro se.

Clinton Bush, pro se.

Paul James Griffin, Jr., pro se.

David T. Ready, U. S. Atty., South Bend, Ind., Richard A. Hanning, Asst. U. S. Atty., Hammond, Ind., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

On March 18, 1974, the Petitioners, Nathaniel Jeffers, Clinton Bush and Paul James Griffin, Jr., and twelve other individuals were charged in a one-count indictment in the United States District Court for the Northern District of Indiana under cause number HCR 74-56 with conspiring over a two and one-half year period to distribute heroin and cocaine in violation of Title 21 of the United States Code, Section 846. On June 27, 1974, the Petitioners and four co-defendants were convicted by a jury as charged under the conspiracy indictment. The Petitioners were each sentenced to 15 years imprisonment on August 6, 1974 by this Judge. From the conviction and sentences, the Petitioners filed a direct appeal.

The principal question raised on direct appeal by the attorneys who had acted as trial counsel was whether the failure of the defense counsel to conduct a thorough cross-examination of a former client, who testified as a prosecution witness, required reversal of that conviction. Specifically, they challenged the refusal of the court to grant a motion to withdraw made by counsel based upon a purported inability to cross-examine James Berry, alleging a conflict of interest resulting from prior representation by an associate attorney in the defense counsel's firm. Additionally, they raised questions of the court's rulings on motions to suppress both physical evidence and statements made by co-defendant, Garland Jeffers.

All convictions were affirmed, United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), and the United States Supreme Court denied the Petition for Writ of Certiorari, Jeffers v. United States, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1975).

The Petitioners and their co-defendants subsequently filed their first habeas corpus petition on February 9, 1976, which was denied. The Court of Appeals affirmed, Garland Jeffers et al. v. United States, United States Court of Appeals for the Seventh Circuit Number 76-1532 (decided November 24, 1976) (unpublished order). A petition for Writ of Certiorari was denied from that decision by the United States Supreme Court, Jeffers et al. v. United States, Supreme Court Number 76-6974 (order of Court issued March 21, 1977).

In the first § 2255 Motion filed, the Petitioners and their co-defendants charged ineffective assistance of counsel, based upon, "(1) A conflict of interest on the part of their trial counsel and a Government witness; (2) Counsel's `failure' to utilize discovery procedures to identify the Government witness; and (3) Failure of their counsel to subpoena certain witnesses to testify in their defense." Additionally, they charged that the Government had used perjured testimony and that the District Court Judge should have disqualified himself from ruling on the § 2255 Petition.

Separately, the Petitioner Nathaniel Jeffers filed two motions to reduce his sentence pursuant to Rule 35, Federal Rules of Criminal Procedure. The first was filed on the 12th day of May, 1976, was denied on the 14th day of May, 1976. The second was filed on the 7th day of July, 1977, and denied on the 10th day of August, 1977.

The latest series of motions under § 2255, Title 28 of the United States Code, were filed by each Petitioner separately. Nathaniel Jeffers filed his Petition on November 8, 1977; Clinton Bush, December 12, 1977; Paul Griffin, January 20, 1978. Except for the differences in presentation of certain exhibits to the Petition, the motions filed by each Petitioner are identical.

Despite their previous efforts to set aside their convictions by direct and collateral attack, the Petitioners raise three issues not raised on direct appeal nor presented to this court on their first § 2255 motion.

Under § 2255, Title 28 of the United States Code, a federal prisoner may seek habeas corpus relief on three specific grounds: that his sentence violates the Constitution, laws or treaties of the United States, that the court lacked jurisdiction to impose sentence, or that the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255 (1970); see, Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952). The Petitioners raise neither of the latter two grounds. Rather, as to the first three issues presented, attempt to claim violations of their constitutional rights to due process of law under the Fifth Amendment and their rights to an impartial jury under the Sixth Amendment.

A motion to vacate a sentence under 28 U.S.C. § 2255 was not intended to broaden or narrow the scope of collateral attack available to a prisoner prior to the enactment of § 2255 through writs of coram nobis and habeas corpus. United States v. McNicholas, 298 F.2d 914 (4th Cir., 1962), cert. denied, 369 U.S. 878, 82 S.Ct. 1150, 8 L.Ed.2d 280 (1962). This section does not provide routine review of convictions and sentences at the whim of a prisoner who is dissatisfied with his sentence, but is available only in the extraordinary and unusual case. Smith v. United States, 277 F.Supp. 850 (Md.D.C.1967) aff'd 401 F.2d 773 (4th Cir. 1967).

While the doctrine of res judicata is not applicable to motions under § 2255, Bennett v. United States, 413 F.2d 237 (7th Cir., 1969); the Supreme Court in Sanders v. United States, 373 U.S. 1, 10, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) has formulated basic rules to guide the lower courts in their interpretation of the statutory provision that the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. The Court held in Sanders that controlling weight may be given to denial of a prior application for § 2255 relief if (1) the same ground presented in subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was made on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. The Supreme Court further explained:

By "ground", we mean simply a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different "ground" than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments. Sanders v. United States, supra, 83 S.Ct. at 1077.

Although Sanders factually presented the Supreme Court with successive motions raising similar grounds, the Court went on to outline the necessary considerations to be made by a District Court considering successive applications raising different grounds:

No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in subpart A set forth above in this argument cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading.

To say that is open to the respondent to show that a second or successive application is abusive is simply to recognize that `habeas corpus has traditionally been regarded as governed by equitable principles.' cite omitted. Among them is the principle that a suiter's conduct in relation to the matter at hand may disentitle him to the relief he seeks.

. . . The principles governing those justifications A. Successive motions on grounds previously heard and determined and B. Successive applications claimed to be an abuse of remedy for denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power—and, if the ends of justice demand, the duty—to reach the merits. Id. at 1078-79.

Since the Sanders decision, Federal District Courts and Courts of Appeals have rejected consideration on the merits of successive § 2255 motions where the petitioner had failed to raise the question on a prior § 2255 motion and the record demonstrated an abuse of remedy. See, Wapnick v. United States, 311 F.Supp. 183 (N.Y.D.C.1969) aff'd, 423 F.2d 1361 (2nd Cir., 1969), cert. denied, 400 U.S. 845, 91 S.Ct. 90, 27 L.Ed.2d 82 (1970) (holding that the denial of a prisoner's claim on a § 2255 motion was required where the claim was known or should have been known at the time of the prisoner's prior application); but see, Floyd v. United States, 365 F.2d 368 (5th Cir., 1966) (applying the test for abuse of remedy laid down in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). Numerous cases have taken the view also that where a question or issue has not been...