LaClair v. United States

• Decision Date: 04 May 1965
• Docket Number: Civ. No. 3596.
• Citation: 241 F. Supp. 819
• Parties: Bernard E. LaCLAIR, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Indiana

241 F. Supp. 819

Bernard E. LaCLAIR, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 3596.

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

May 4, 1965.

Bernard E. La Clair, pro se.

No appearance for the United States.

GRANT, Chief Judge.

This is a motion, pursuant to Title 28, Section 2255 of the United States Code, to vacate or correct the sentence of imprisonment imposed upon petitioner when he pleaded guilty to each of six charges of bank robbery, such charges constituting violations of Title 18, Sections 2113(a) and (in five of the six) 2113(d) of the United States Code. Petitioner was sentenced to imprisonment for a period of thirty years by Judge Luther M. Swygert (now a Circuit Judge), in this Court, on July 7, 1954.

I.

In order that a more clear understanding may be had of the Court's evaluation of the motion now before it, it is well to begin with a brief résumé of this petitioner's previous Section 2255 motions filed in and ruled upon by this Court.

As already indicated, this petitioner was sentenced on July 7, 1954, on his pleas of guilty to six separate cases charging him with six bank robberies under the several appropriate subsections of Title 18, Section 2113 of the United States Code. Two of those cases originated in this District, while the other four were disposed of here under Rule 20 of the Federal Rules of Criminal Procedure on transfer from Massachusetts, Connecticut, Ohio, and the Southern District of Indiana. Five of the six cases included counts for assault or putting in jeopardy the life of a person by the use of a deadly weapon, as set forth in Subsection (d) of Section 2113. For all of the six cases, petitioner was sentenced to serve thirty years in prison and to pay fines in the total amount of fifty-thousand dollars ($50,000.00).

Eight days after this sentence was imposed, petitioner and two other prisoners attempted to escape from the St. Joseph County jail, located in South Bend, Indiana, wherein petitioner was being held awaiting transfer to a federal prison. Thereafter, petitioner pleaded guilty to an information charging violation of Title 18, Section 751 of the United States Code. On this attempted escape charge, petitioner was sentenced to an additional prison term of five years "to be served consecutively to the sentence received on July 7th," and fined an additional five-thousand dollars ($5,000.00), said sentence imposed by Judge Swygert on July 23, 1954. Any doubt about the fact that this was an additional five-year term, to run consecutively with the bank robbery sentences, was removed following denial of petitioner's Rule 36 motion and affirmance thereof by the Seventh Circuit Court of Appeals in LaClair v. United States, 303 F.2d 602 (7th Cir. 1962).

Some five years later, on August 24, 1959, this petitioner filed his first motion to vacate sentence under Section 2255. That earlier petition was based on allegations that petitioner's pleas of guilty were obtained through "threats, promises and coercion"; that he was "exploited by newspapers and magazine articles shortly before appearing before (sic) trial" and that the same were "prejudicial"; and that his counsel promised to protect his rights, which promises were broken. That 2255 motion was denied and the denial thereof was affirmed on appeal. United States v. LaClair, 285 F.2d 696 (7th Cir. 1960), cert. den. 365 U.S. 854, 81 S.Ct. 820, 5 L.Ed.2d 818 (1961).

On August 21, 1963, petitioner filed a second motion to vacate and correct sentence. Therein petitioner alleged, inter alia, that he "was victimized (sic) of a collusional arrest between State, Local and FBI authorities"; that "the rules of 5(a) Federal Rules of Criminal Procedure were not adhered to subsequent to (his) arrest without a warrant"; that his pleas of guilty "were the results of inducements, threats, promises and coercion by State, Federal and FBI officers and by (his) attorney's (sic)"; and that he was not provided effective or competent assistance of counsel. This 2255 motion was denied by Order of this Court on December 20, 1963. Thereafter, on February 3, 1964, petitioner filed a motion for reconsideration and/or rehearing of the Order of December 20th. This latter motion was denied on February 24, 1964.

Then, on April 15, 1964, petitioner sent to this Court a letter requesting that he be granted an extension of time to file Notice of Appeal from the February 24, 1964, denial of his motion for reconsideration of the denial of his prior motion to vacate sentence. In that letter, petitioner informed the Court that he had filed for executive clemency and that "application for pardon or commutation will not be considered * * * pending appeals from judgments of conviction." Be that as it may, by its Order of April 23, 1964, this Court stated that it had no authority to grant an extension of the time in which to file Notice of Appeal, but, under the circumstances, would treat petitioner's letter as the filing of his Notice of Appeal. The Court further stated that if petitioner did not desire to pursue his appeal, he could upon notice to the Clerk, enter a dismissal thereof.

On April 23, 1964, petitioner filed what he termed "a supplemental motion to petitioner's motion 2255 dated August 21, 1963." Thereafter, on May 18, 1964, the application to treat the "motion" as "supplemental" was denied, and the Court ordered that the motion of April 23, 1964, to be treated as a new and independent motion under Section 2255.

With regard to petitioner's appeal of the Order of February 24, 1964, this Court, on June 8, 1964, after a full review of all the files, denied leave to appeal in forma pauperis and certified that petitioner's application to this end was not taken in good faith. On June 11, 1964, the Seventh Circuit (Knoch, Circuit Judge) denied petitioner's motion for leave to file an appeal in forma pauperis.

It has already been noted that petitioner's Section 2255 motion of April 23, 1964, was ordered treated as a new such motion rather than "supplemental" to his prior motion of August 21, 1963. The merits of this motion were considered by the Court and disposition was rendered thereon on November 13, 1964. In this motion, it was contended that relief should be granted for the reason that petitioner was "incompetent" at the time of the entry of the pleas of guilty, both on the date of arraignment and the date of sentencing. Other than the bald conclusory statement of petitioner's incompetency, the contention was otherwise entirely unsupported by allegations of fact. On grounds that the pleadings were insufficient, this Court denied the motion without prejudice to a renewal of same, if legally sufficient. If properly supported by allegations of fact, the Court indicated, such a similar Section 2255 motion would not be considered repetitious.

II.

Thus prefacing the Court's consideration of the motion to vacate now before it with a review of this petitioner's prior motions for similar relief is both proper and appropriate for the reason that Section 2255 explicitly states that, "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." More shall be said of this later; consideration now turns to the merits of the motion at hand.

A.

The first of the three contentions raised by petitioner herein is that he was not "afforded effective assistance of counsel prior to and at the time of sentencing." More specifically, petitioner now contends that he was insane at the time he committed the offenses for which he stands convicted and, therefore, "petitioner's counsel failed to render effective assistance of counsel in not requiring petitioner to stand trial on the criminal charges and setting up (sic) insanity as a defense."

Inasmuch as the issue of this petitioner's being afforded effective and competent counsel — counsel which, incidentally, was obtained and paid by petitioner himself — has been before this Court on two of his prior Section 2255 motions (motions of August 24, 1959, and August 21, 1963), it may be disposed of adversely to petitioner summarily. Green v. United States, 313 F.2d 6 (1st Cir. 1963), petition for cert. dismissed 372 U.S. 951, 83 S.Ct. 948, 9 L.Ed.2d 976 (1963), on remand 219 F.Supp. 750 (D. Mass.1963), affirmed 334 F.2d 733 (1st Cir. 1964). In this respect, the memorandum opinion (unpublished) of Judge Swygert of September 29, 1959, appended to the Order denying petitioner's first Section 2255 motion, stated:

"The petitioner was represented by two respected and competent attorneys of the Fort Wayne, Indiana, Bar. One of them is a former Assistant United States Attorney for the Northern District of Indiana."

Finally, the claim that his attorney was ineffective is of no avail on a motion under Section 2255 unless counsel's failure was such as to make the proceedings against the defendant a farce and a "mockery of justice". United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert. den. 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950); United States v. Miller, 254 F.2d 523 (2d Cir. 1958); Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436 (1963), cert. den. 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1964). On the record in this case, it is impossible to make such a finding now, just as it was impossible twice in the past.

B.

Petitioner's second contention raised herein is that he was mentally incompetent prior to and at the time of sentencing. There is no doubt that the remedy under Section 2255 is available to test the mental competency of a criminal defendant to understand the proceedings against him and of his mental ability at the time to enter a legally valid plea of guilty. Nunley v. Taylor, 330 F.2d 611 (10th Cir. 1964); United States v. Thomas, 291 F.2d 478 (6th Cir. 1961). Before determining whether a hearing is necessitated on this contention, the Court need evaluate the allegations...