Lipscomb v. United States

• Decision Date: 03 December 1962
• Docket Number: No. 17159.,17159.
• Parties: Robert E. LIPSCOMB, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

308 F.2d 420 (1962)

Robert E. LIPSCOMB, Appellant, v. UNITED STATES of America, Appellee.

No. 17159.

United States Court of Appeals Eighth Circuit.

September 12, 1962.

Certiorari Denied December 3, 1962.

R. E. Lipscomb, was on the brief, pro se.

D. Jeff Lance, U. S. Atty., and Lee J. Placio, Jr., Asst. U. S. Atty., St. Louis, Mo., was on the typewritten brief for appellee.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

Certiorari Denied December 3, 1962. See 83 S.Ct. 298.

JOHNSON, Chief Judge.

Lipscomb pleaded guilty in 1951 to a charge of unlawfully possessing counterfeit currency and to four charges of having passed counterfeit currency with intent to defraud, in violation of 18 U.S.C. § 472. In view of his long and persistent career as a law violator, he was given a sentence of five years' imprisonment on each count, with the terms to be served consecutively.

The prospect of possible confinement for 25 years was naturally not pleasing to Lipscomb, and he has engaged in attempts ever since to get his conviction and sentences set aside. Every form of motion for which he has been able to discover any prototype in the books seems to have been resorted to by him. Some of these attempts he has allowed to terminate at the trial court level. Most of them, however, he has sought to make the subject of appeals before us and also of applications to the Supreme Court for certiorari. Five times his matters have been brought before us, with some of them involving only a single instrument of attack, while others have involved a series of instruments together.

In each instance we have had to hold that the situation was without basis for granting any of the relief sought. See Lipscomb v. United States, 8 Cir., 209 F.2d 831, certiorari denied 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105, rehearing denied 347 U.S. 1022, 74 S.Ct. 875, 98 L.Ed. 1142; Lipscomb v. United States, 8 Cir., 226 F.2d 812, certiorari denied 350 U.S. 971, 76 S.Ct. 445, 100 L.Ed. 843, rehearing denied 350 U.S. 1003, 76 S.Ct. 550, 100 L.Ed. 866; Lipscomb v. United States, 8 Cir., 273 F.2d 860, certiorari denied 364 U.S. 836, 81 S.Ct. 72, 5 L.Ed. 2d 61, rehearing denied, 364 U.S. 888, 81 S.Ct. 173, 5 L.Ed.2d 108; U. S. ex rel. Lipscomb v. U. S. Attorney for the Eastern Dist. of Missouri, 8 Cir., Misc. No. 101, (unreported) order denying leave to file petition in mandamus, certiorari denied 365 U.S. 851, 81 S.Ct. 814, 5 L.Ed. 2d 815; Lipscomb v. United States, 8 Cir., 298 F.2d 9, certiorari denied 369 U.S. 853, 82 S.Ct. 941, 8 L.Ed.2d 12, rehearing denied 369 U.S. 891, 82 S.Ct. 1163, 8 L.Ed.2d 291.

The first attack which Lipscomb made was by a motion under 28 U.S.C.A. § 2255, alleging that he was of unsound mind at the time of his arraignment and sentencing, from an active drug addiction, and that he therefore had been mentally incompetent to make the plea of guilty which he entered. The court held a plenary hearing upon this charge, with Lipscomb being present, taking the witness stand, and also being represented by appointed counsel. The court found that on the evidence adduced Lipscomb's charge of drug influence and mental incompetency was wholly without basis, and we made affirmance of this determination, commenting in our opinion that the finding was sustained "by an overwhelming preponderance" of the evidence. 209 F.2d at p. 835.

The trial court further made a specific determination that the plea of guilty entered by Lipscomb to each of the charges against him had been voluntarily and understandingly made, and that there had been an intelligent waiver by him of indictment and of his right to be represented by counsel in the proceedings. In affirming this determination, we noted that "The record of the proceedings had at the time of his arraignment * * * showed that his constitutional right in this regard was scrupulously guarded by the trial court". Id. at p. 834.

The various other attacks in which Lipscomb has engaged have been listed above; some of them are discussed in our opinion in 298 F.2d 9; and there is no occasion to go into their details, except as a specific reference is hereafter made to one of them.

After having resorted to every form of motion attack of which he was able to conceive through a 10-year period, Lipscomb then came forth with a motion in the trial court for recognition of a right to prosecute belatedly and in forma pauperis an appeal from his conviction and sentences. The trial court held that, on the record of the proceedings and the determinations which had thereafter been made against him, the motion was legally frivolous on its face; made denial of it; and further refused leave to prosecute an appeal in forma pauperis from such order, on the ground that the appeal could have no basis of good faith. Lipscomb now seeks leave from us to have his alleged right to a belated appeal recognized and to be permitted to prosecute it in forma pauperis.

His motion in the trial court for recognition of such a right of belated appeal predicated existence of jurisdiction on the ground that he had within three days after his conviction prepared and sought to have transmitted to the trial judge a letter giving notice of his desire and making request for leave to appeal, but that the officials of the St. Louis city jail, where he was held awaiting transportation to the federal penitentiary, had refused to allow the letter to be mailed. The Government was not, of course, after ten years, in a position to disprove Lipscomb's assertions as to his mailing attempt or the nature thereof. Its investigation was unable to develop anything either to substantiate or to refute Lipscomb's claim in this respect.

On this situation, we shall for purposes of our consideration assume the facts regarding the mailing attempt to be as Lipscomb has alleged them. But, although the matter is thus being treated as one in which timely notice of appeal was constructively filed in the trial court in 1951, this fact does not command that Lipscomb should be permitted to prosecute that dormant appeal in 1962.

Regardless of whether it might be sought to prosecute such an appeal as a paid one or in forma pauperis, we would not ordinarily allow a defendant, after the lapse of such a period, to pick up the threads of an appeal, which had been timely taken by the filing of notice of appeal, but which had not thereafter been attempted to be pursued. Failure to prosecute for such an unreasonable length of time would generally entitle it to be held that an abandonment existed.

Even, however, if the situation were one of such extraordinariness in circumstance as to be without basis for...