Johnson v. United States, 15552.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation334 F.2d 880
Docket NumberNo. 15552.,15552.
PartiesClyde JOHNSON, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
Decision Date22 July 1964

Clyde Johnson, in pro. per.

William A. McTighe, Jr., Asst. U. S. Atty., Memphis, Tenn. (Thomas L. Robinson, U. S. Atty., Edward N. Vaden, Asst. U. S. Atty., Memphis, Tenn., Herbert J. Miller, Jr., Asst. Atty. Gen., Department of Justice, Criminal Division, Washington, D. C., on the brief), for respondent-appellee.

Before WEICK, Chief Judge, MILLER, Circuit Judge, and GRAY, District Judge.

WEICK, Chief Judge.

This appeal is from an order of the District Court denying appellant's motion to vacate sentence filed under the authority of Rule 35 of the Federal Rules of Criminal Procedure. He was convicted by a jury in the District Court in 1949 of charges of bank robbery and transporting stolen money in interstate commerce contained in two indictments which were consolidated for trial. He did not appeal from the judgments of conviction.

The first indictment charged him with bank robbery on February 8, 1949. The second indictment contained two counts. In Count 1 he was charged with knowingly transporting $21,000 of stolen money in interstate commerce from Memphis, Tennessee to Little Rock, Arkansas on February 9, 1949. In Count 2 he was charged with unlawfully transporting $34,000 of stolen money from Memphis to Miami, Florida on February 9, 1949.

He received a sentence of 20 years on the bank robbery indictment and 10 years on each count of the two-count indictment for the illegal interstate transportation of stolen money all of which were to run consecutively for a total of 40 years.

The Rule 35 motion in the present case attacked only the 10 year sentence imposed on Count 2 of the indictment charging illegal interstate transportation of $34,000 of stolen money from Memphis to Miami. Johnson did not question the 20 year sentence for bank robbery or the 10 year consecutive sentence for transporting the $21,000 of stolen money in interstate commerce under Count 1, which sentences he is presently serving.

The District Judge denied the motion without a hearing.

It is the claim of appellant that the sentence on Count 2 was not authorized. He asserts that the $21,000 mentioned in Count 1 and $34,000 in Count 2 were part of the proceeds of the bank robbery of which he was convicted in the District Court and that this money was involved in a continuous transportation from Memphis to Little Rock and return and from Memphis to Miami and constituted a single offense for which only one 10 year sentence was authorized.

There is nothing in the record to prove appellant's claim. The facts on which he relies appear only in his briefs. Since no appeal was taken from his conviction, a transcript of the evidence at his trial has never been prepared.

The indictments do not support appellant's claims. They merely allege that "the said sum of money having theretofore been stolen and converted by the said Clyde Milton Johnson * * *" They do not allege the source of the stolen money or that the $21,000 involved in Count 1 was part of the $34,000 in Count 2. The transportation alleged in the two counts was to different states located in opposite directions and was not stated to be continuous.

With reference to his contention that only one transportation offense was committed, appellant relies principally on United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260; Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905; Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370; Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199; Castle v. United States, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75.

The record here is not in such shape as permits us to apply the rule in these cases. This is not a direct appeal to review a judgment of conviction or in a proceeding to collaterally attack a judgment of conviction under Title 28 U.S.C. § 2255. The present case was instituted under the authority of Rule 35.

We could not treat this case as a proceeding under Section 2255 because that remedy is available only to attack a sentence under which a prisoner is in custody. This seems to be the view of a majority of the Justices of the Supreme Court and it is our understanding of the law. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407; Duggins v. United States, 240 F.2d 479 (CA 6); Juelich v. United States, 257 F.2d 424 (CA 6).

Johnson is not in custody under the sentence imposed on Count 2. He is serving the bank robbery sentence of 20 years and the 10 year sentence under Count 1 which were to be served consecutively, neither one of which he is attacking. He has served only one half of these sentences. He made no claim that he had served either or both of these sentences or that he had been paroled. He is, therefore, lawfully detained on unquestioned sentences.

We do not indulge in the speculation contained in the dissent, on matters not in the record before us, that Johnson may have served his 30 year sentence or was entitled to parole or that the District Judge may have had facts to support the motion under Section 2255. We feel certain that if the District Judge had been in possession of such facts he would have mentioned them in his order.

The facts alleged by appellant in his brief could be established only by evidence dehors the record.

The purpose of Rule 35 was to permit the court, at any time, to correct a sentence that "the judgment of conviction did not authorize." United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248; Duggins v. United States, supra. Application of the Rule presupposed a valid judgment and it was not contemplated by such a proceeding to go outside of the record to collaterally attack it. Other remedies were available for that purpose.

The sentence of 10 years on Count 2 was authorized by the judgment of the court finding appellant guilty on that count. Title 18 U.S.C. § 2314.

In effect, appellant is attempting not to correct an unauthorized sentence, but to collaterally attack and overturn his conviction under Count 2. Rule 35 may not be used as a substitute for appellate review, or to attack the validity of a conviction. Willis v. United States, 289 F.2d 581, 584 (CA 8); Funkhouser v. United States, 260 F.2d 86 (CA 4); Duggins v. United States, supra; Cuckovich v. United States, 170 F.2d 89 (CA 6).

The dissenting opinion quotes the first sentence in the order of the District Judge that appellant was "claiming that Count 2 of an indictment under which he was sentenced for bank robbery is illegal." We regard this statement of the District Judge as inadvertent. No point of it was made by appellant and it appears for the first time in the dissent. A reading of the entire order convinces us that the District Judge was aware of the fact that appellant was attacking only Count 2 of the indictment charging illegal transportation of stolen money and was not disputing his sentence on Count 1 or on the bank robbery indictment.

It was the view of the District Judge that appellant in reality was attacking his conviction under Count 2 of the indictment. If, as appellant claims, the evidence at the trial proved a continuous transportation of the same money from Memphis to Little Rock, from Little Rock to Memphis and from Memphis to Miami, then he should not have been convicted on Count 2. The District Judge stated in his order, however, that the facts were sufficient to go to the jury under Count 2. The Court was of the opinion that the jury verdict could not be collaterally attacked under Rule 35 and that the prisoner could not use the procedure under this Rule to appeal his cause on the facts.

We think the District Judge was correct in his ruling. While, as pointed out in the dissent, motions under Rule 35 are filed in the original criminal action, this does not mean that a delayed appeal is afforded thereby to review the validity of a judgment of conviction. In our opinion, it was never intended that the Rule operate for any such purpose.

Appellant has an adequate remedy to obtain relief pursuant to Section 2255 as soon as he serves his unquestioned sentences and is in custody under the sentence imposed on Count 2.

We realize that we are probably authorized to treat the motion under Rule 35 as an application for a Writ of Error Coram Nobis (See United States v. Morgan, supra, where that ancient remedy was resurrected) but we have no inclination to do so. The present case, in our judgment, presents no exceptional circumstances as were involved in Morgan, justifying the granting of such relief. Fifteen years have elapsed since appellant's conviction. In this long interval witnesses may have died or moved to parts unknown. The transcript of evidence offered at the criminal trial probably cannot be prepared as, we are advised, the reporter is dead. Appellant was not an inexperienced infant wholly unfamiliar with the law as the brief pro per filed in his case eloquently attests. He previously had many encounters with the law. We do not believe it took him 15 years to discover the point which he is now raising. We think he knew all about it much sooner. He may have had such knowledge at the time of the previous Section 2255 proceeding, in which he attacked his conviction on grounds other than asserted here. In a brief filed in that proceeding he stated:

"Whether or not Judge Boyd was prejudicial to petitioner is a matter of conjecture; but Judge Boyd did impose the maximum present sentence under the law. In fact, Judge Boyd may have overreached himself in the matter of sentence, but that issue is not raised here." (Italics ours)

Perhaps appellant was withholding that issue for future use.

This Court in 1956 had occasion to review the order of Judge Boyd denying the motion to vacate sentence.1 The opinion of the Court was to the...

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