Larson v. United States
Decision Date | 29 February 1960 |
Docket Number | No. 17942.,17942. |
Citation | 275 F.2d 673 |
Parties | Lewis Woodard LARSON, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Lewis W. Larson, in pro. per.
E. Ralph Ivey, Asst. U. S. Atty., Charles D. Read, Jr., U. S. Atty., Atlanta, Ga., for appellee.
Before TUTTLE, CAMERON and WISDOM, Circuit Judges.
The question for decision is whether, in the circumstances of this case, a collateral attack on an unappealed judgment of conviction may be made under Section 2255, Title 28. The prisoner gives no reason for failing to appeal and it appears that his failure to appeal, his decision not to move for a change of venue, and his withdrawal of a motion for a new trial were all part of considered strategy not to jeopardize his life by running the risk of a new trial. We hold that the prisoner may not now substitute a proceeding under Section 2255 for the orderly appellate process he deliberately declined to use six years ago when the errors, if they were errors were as obvious as they are today.
On August 25, 1953, Lewis Woodard Larson, appellant, and Herbert Eugene Juelich were indicted for the murder of a Deputy United States Marshal.1 There was considerable prejudicial publicity before and during the trial.2 Juelich moved for a change of venue; Larson did not. The motion was denied. The case was called for trial on November 24, 1953, and from November 24, 1953 to December 2, 1953, the court heard motions and each juror on the panel was questioned at length on voir dire. The record of the trial, as this Court observed in Juelich v. United States, 5 Cir., 1954, 214 F.2d 950, shows that each member of the trial jury empanelled expressed the opinion that Larson or Juelich, or both, were guilty. Each member of the jury stated also that he would base his verdict on the testimony, regardless of his opinion. The jury returned a verdict of guilty against Larson, with recommendations against capital punishment. The verdict against Juelich was guilty, with no recommendation against capital punishment; he was the one who pulled the trigger. Juelich was sentenced to death. He appealed. Larson received a life sentence. He did not appeal.
This Court reversed the conviction of Juelich. We held: Juelich v. United States, 5 Cir., 1954, 214 F.2d 950, 956.
The trial judge, in his opinion on Larson's motion under Section 2255, observed that Larson was represented at his original trial by two "able and outstanding attorneys, who, together with movant, appeared entirely satisfied with the verdict of guilty with recommendations of mercy". One of the attorneys, James Maddox, well-known at the Georgia bar, was a former Judge of the Superior Court of the Rome, Georgia, Judicial Circuit. These attorneys filed a motion for severance and a motion to dismiss. The district court denied both motions. November 30, 1953, Larson's counsel moved for a continuance. After selection of the jury, December 2, 1953 this motion was renewed. The motion was denied. The same day Larson's counsel moved that all jurors be disqualified. This motion too was denied. December 8, 1953, Larson moved that the verdict be set aside and that he be granted a judgment of acquittal and, in the alternative, that he be granted a new trial. The only ground alleged for a new trial was that there was no evidence submitted to justify the jury's verdict of guilty of the offense of murder in the first degree. The motion for judgment of acquittal was denied. Then, December 11, 1953, Larson withdrew his motion for a new trial.
Juelich was later retried, convicted, and sentenced to a life sentence. The risk of a death sentence therefore, to which Larson would have been exposed if he had appealed with Juelich in 1953 and had been retried, has been reduced almost to zero. Now, Larson brings this action under Section 2255 and appeals from the order of the district court denying his motion.
In a carefully considered opinion, the trial judge stated:
A motion under Section 22554 is a post-conviction proceeding to enable a federal prisoner to attack the validity of a sentence, if the sentence is "in violation of the Constitution or laws of the United States". But the constitutional ground must be "such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." A collateral attack may be sustained only upon grounds which would warrant granting a writ of habeas corpus.5
The Great Writ is still the greatest writ. Nevertheless, even the Great Writ may not be used as a substitute for appeal or writ of error to reverse a judgment. Thus, in Howell v. United States, 4 Cir., 1949, 172 F.2d 213, 215, Judge Parker6 held:
In Sunal v. Large, 1947, 332 U.S. 174, 181, 67 S.Ct. 1588, 1592, 91 L.Ed. 1982, the Supreme Court held:
In Sunal v. Large, the Supreme Court pointed out that the error did "not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court". In Bowen v. United States, 5 Cir., 1951, 192 F.2d 515, certiorari denied 343 U.S. 943, 72 S.Ct. 1036, 96 L.Ed. 1348, however, this Court applied the principle to a collateral attack based on lack of due process: ...
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Mitchell v. United States, 72-3661.
...Allen, 1952, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469; Brown v. United States, 5th Cir. 1973, 480 F.2d 1036; Larson v. United States, 5th Cir. 1960, 275 F.2d 673, we cannot agree with the district court that Mitchell waived his right to attack the validity of the prior convictions......
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MacKenna v. Ellis
...324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. 11 See, for example, the recent cases decided by members of this panel: Larson v. United States, 5 Cir., 1960, 275 F.2d 673; T. Smith & Son, Inc. v. Williams, 5 Cir., 1960, 275 F.2d 397; Empire Picture Co. et al. v. City of Fort Worth et al., 5 Cir......
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Fay v. Noia, 84
...within constitutional limits in permitting such a sentence to be imposed. Of particular relevance here is the decision in Larson v. United States, 5 Cir., 275 F.2d 673. Two criminal defendants had been tried and sentenced to imprisonment by a federal court. One defendant, Juelich, had moved......
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Reddick v. State, 6551
...at the Federal level have consistently held that the substantive scope of Sec. 2255 is the same as habeas corpus. Larson v. United States, 275 F.2d 673, (5 CA 1960); Black v. United States, 269 F.2d 38 (9 CA 1959); Taylor v. United States, 229 F.2d 826, (8 CA 1956); Kreuter v. United States......