Lupino v. United States

• Decision Date: 28 July 1960
• Docket Number: Re 4-58 Cr. 77.,No. 4-60 Civ. 208,4-60 Civ. 208
• Citation: 185 F. Supp. 363
• Parties: Rocco Salvatore LUPINO, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Minnesota

185 F. Supp. 363

Rocco Salvatore LUPINO, Petitioner, v. UNITED STATES of America, Respondent.

No. 4-60 Civ. 208, Re 4-58 Cr. 77.

United States District Court D. Minnesota, Fourth Division.

July 28, 1960.

Rocco Salvatore Lupino, pro se.

Fallon Kelly, U. S. Atty., William C. Hunt, Asst. U. S. Atty., St. Paul, Minn., for the United States.

DEVITT, Chief Judge.

On June 29, 1960 Rocco Salvatore Lupino (hereinafter referred to as the defendant) moved this Court under Title 28 U.S.C. § 2255, for an order vacating a sentence imposed upon him on November 28, 1958. He has also moved for leave to proceed in forma pauperis pursuant to Title 28 U.S.C. § 1915.

The basis for the motion to vacate sentence is that the statute under which conviction was had, Title 18 U.S.C. § 1073, is unconstitutional. There are three grounds for unconstitutionality alleged in the motion to vacate sentence: First, that Section 1073 violates the Fifth Amendment to the Constitution which provides that no person shall be held to answer for a capital crime unless on an indictment by a grand jury, for the reason that under the instructions to the jury given in the criminal proceedings and approved by the Court of Appeals for the Eighth Circuit in Lupino v. United States, 8 Cir., 1959, 268 F.2d 799, the accused is required to defend against the "unindicted" charge from which he is charged with having fled to avoid prosecution under Section 1073.

The second ground of alleged unconstitutionality is that Section 1073 "nullifies" and is inconsistent with Clause 2, Section 2, of Article IV of the Constitution. The argument advanced here is that Section 1073 in some manner infringes upon the extradition procedures provided for in the cited Article, in that federal authorities can remove from one state to another persons accused of a federal crime.

The third ground is that Section 1073 is so indefinite and uncertain as to be a violation of the Due Process clause of the Fifth Amendment to the Constitution. The argument appears to be that fatal indefiniteness arises because a person may be convicted for violating Section 1073 without any state process in the form of indictment or warrant having been issued charging the offense, the prosecution for which the accused is alleged to have fled in interstate commerce. Absent the institution of prosecution by state authorities, the accused in a Section 1073 prosecution has no opportunity to be aware of the prosecution he is charged with having fled to avoid.

This Court is of the opinion that the Motion to Vacate Sentence must be denied. Section 2255 provides in pertinent part:

"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution * * * may move the court which imposed the sentence to vacate, set aside or correct the sentence.

* * * * * *

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. * * *

* * * * * *

"The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. * * *"

The conclusion this Court has reached is based on the following grounds:

First, motions for similar relief on behalf of the same defendant have already been presented on several prior occasions and rejected, making the instant motion a second or successive motion which this Court need not entertain under the provisions of Section 2255; and in addition, because there have been repeated adjudications of the same issues by this Court and the Court of Appeals, this Court is not obliged to hear reargument of those issues. See Story v. United States, infra. Secondly, the motion, files and records in the case conclusively show that upon the issues raised the defendant is entitled to no relief. Either of the grounds stated for denying the Motion without a hearing would be sufficient standing alone; however for the sake of being complete, there is hereinafter set out in more detail a discussion of each of the grounds which compel the Court to its conclusion.

I.

The defendant appealed from the judgment of conviction and sentence which he now seeks to have set aside. The Court of Appeals for the Eighth Circuit affirmed. Lupino v. United States, 8 Cir., 1959, 268 F.2d 799. The Supreme Court denied certiorari. Lupino v. United States, 1959, 361 U.S. 834, 80 S. Ct. 86, 4 L.Ed.2d 75.

The record and the files show that in this Court on several occasions the defendant raised the issue of the constitutionality of Section 1073. In his pretrial Motion to Dismiss the Indictment filed on June 18, 1958, and in the argument on that Motion on July 7, 1958, the issue was presented to this Court. It was argued that if Section 1073 were construed to prohibit interstate travel by a person whom the prosecution proves to have committed an act in violation of a State law and whom the prosecution proves to have fled with the intent to avoid prosecution by State authorities for that crime, though no formal State prosecutive machinery had been set in motion, then Section 1073 would be unconstitutional as inconsistent with Article IV, Section 2, Clause 2 of the Constitution as well as with the due process clause. (Brief in Support of Motion to Dismiss Indictment, pp. 21-29). During the course of the conference concerning jury instructions the defendant's counsel again raised the question of the constitutionality of Section 1073. (Transcript Proceedings for October 1, 1958, pp. 14-51). On October 20, 1958, the defendant's attorney moved for a directed verdict of acquittal and also renewed all motions that were on file in writing that had previously been ruled on by the Court.

The heart of the constitutional argument was that Section 1073 could not be constitutionally sustained if it did not require that "prosecution" meant "existing prosecution." This argument was duly presented to this Court on the occasions set out, considered by this Court, and duly rejected. This is the same argument which is the basis for the three alleged grounds of unconstitutionality in the instant motion to vacate under Section 2255. The second and third grounds stated in the Section 2255 Motion are almost precisely the same as those advanced in this Court at the time of trial. The first ground stated in the present motion was not specifically raised but it nevertheless is based essentially on the same proposition.

Upon his appeal from the conviction in this Court, the defendant again raised the issue of the constitutionality of Section 1073 before the Court of Appeals for the Eighth Circuit. (Brief for Appellant in the Court of Appeals for the Eighth Circuit, Cr. No. 16,163, pp. 20-22). The Court of Appeals held: "* * * we do not find the statute either ambiguous or unconstitutional." Lupino v. United States, 8 Cir., 1959, 268 F.2d 799, 802. In his Petition for Writ of Certiorari the argument was again set forth. (Petition, pp. 6-14).

It thus appears that on several occasions the defendant raised the question of constitutionality in this Court during the trial proceedings; he raised the same issue upon appeal with the Court of Appeals for the Eighth Circuit; he raised it in his Petition for Certiorari. In each instance his contentions were rejected. This should put the matter to rest since Section 2255 cannot be used to reargue a point which the defendant has previously presented and which has been determined against him, Story v. United States, 8 Cir., 1950, 185 F.2d 952; McGuinn v. United States, 1956, 99 U.S. App.D.C. 286, 239 F.2d 449; and this Court is not compelled to hear a second or successive motion for similar relief. Title 28 U.S.C. § 2255.

In Story v. United States, supra 185 F.2d 953, the Court of Appeals for this Circuit clearly enunciated this proposition. Story had been convicted of armed robbery of a Federally insured bank. He made a motion under Section 2255 for vacation of the judgment of conviction and sentence on the ground that, "The judgment and sentence is void without due process of law, and in violation of and contrary to the Fifth and Sixth Amendments to the United States Constitution in that: your petitioner was deprived of adequate and effective assistance of counsel in a trial before a jury."

The District Judge to whom the motion was addressed denied the motion, stating in part:

"* * * And it further appearing to the court that the above named petitioner has on several previous occasions submitted similar contentions, based on the same allegations as set forth in instant motion, each of such previous motions having heretofore been denied; now, therefore, it is hereby ordered that the Motion to Vacate Judgment and Sentence of said petitioner, Roy L. Story, be and the same hereby is denied."

The Court of Appeals further noted that Story had not only unsuccessfully sought review of his conviction, at which time he raised issues similar to those charged in the Section 2255 motion, but also that he had applied unsuccessfully for a Writ of Habeas Corpus on the same grounds.

In affirming the lower court's denial of the 2255 motion, the Court of Appeals held:

"The Supreme Court, in Darr v. Burford, etc., 339 U.S. 200, 70 S.Ct. 587, 596, 94 L.Ed. 761, which was a habeas corpus case, held that while res judicata does not apply to applications for writ of habeas corpus, yet, `On that application, the court may require a showing of the record and action on prior applications, and may decline to examine further into the merits because they have already been decided against the petitioner. Thus there is avoided abuse of the writ by repeated attempts to secure a hearing on frivolous

...