Marchese v. United States

• Decision Date: 12 July 1962
• Docket Number: No. 17480.,17480.
• Citation: 304 F.2d 154
• Parties: Michele MARCHESE, Appellant, v. UNITED STATES of America, and Preston Smith, Warden of U. S. Correctional Institution at Terminal Island, California, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

304 F.2d 154 (1962)

Michele MARCHESE, Appellant, v. UNITED STATES of America, and Preston Smith, Warden of U. S. Correctional Institution at Terminal Island, California, Appellees.

No. 17480.

United States Court of Appeals Ninth Circuit.

May 31, 1962.

Rehearing Denied July 12, 1962.

Russell E. Parsons and Wendell P. Hubbard, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, and William Bryan Osborne, Asst. U. S. Atty., Asst. Chief, Criminal Division, Los Angeles, Cal., for appellees.

Before BARNES and JERTBERG, Circuit Judges, and DAVIS, District Judge.

DAVIS, District Judge.

This is an appeal from an order of the United States District Court, Southern District of California, denying appellant's petition for a writ of habeas corpus. The appeal is made pursuant to 28 U.S.C.A. § 2253.

Appellant was convicted of narcotics violations and sentenced to imprisonment, and is confined within the jurisdiction of the same court. Hence that court is the proper forum for either a motion under 28 U.S.C.A. § 2255, or for a petition for writ of habeas corpus.

After appealing his conviction to this Court, and being denied certiorari by the Supreme Court of the United States, appellant filed in the court which imposed the sentence, a motion under § 2255 to annul, vacate and set aside the judgment of conviction. That motion was finally denied March 15, 1961, and no appeal was taken from that order.

On June 20, 1961, the instant habeas corpus action was filed and was dismissed by the District Court for lack of jurisdiction. The portions of § 2255 pertinent to this appeal are:

"A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

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

"An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.

"An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." (Emphasis supplied).

In the enactment of § 2255, "* * * the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum." (Emphasis supplied) United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232.

This viewpoint is even more clearly expressed in Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, wherein the Supreme Court said:

"* * * Suffice it to say that it conclusively appears from the historic context in which § 2255 was enacted that the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined."

Petitioner contends that the provision of § 2255 which seeks to limit the use of habeas corpus is violative of Article I, Section 9, Clause 2 of the Constitution of the United States. This court has considered that question numerous times, and is still of the opinion expressed in Jones v. Squier, 195 F.2d 179 (9th Cir. 1952):

"* * * The judgment in the conspiracy and aiding and abetting case shows on its face that the court had jurisdiction of the subject matter and of the person of Jones who appeared and pleaded not guilty. Hence no relief could be afforded Jones under the Great Writ as it stood at the time the Constitution was adopted. Under that Writ the court was confined to the face of the judgment and the process by which jurisdiction over the accused was had for the sole purpose of determining whether the convicting court had jurisdiction of the prosecution and the accused. The court could not even examine the indictment to see if it charged an offense not punishable criminally. See Chief Justice Marshall\'s opinion for a unanimous court in Ex parte Watkins, 3 Pet. 193, 202, 209, 7 L.Ed. 650. Cf. Frank v. Mangum, 237 U.S. 309, 330, 35 S.Ct. 582, 59 L.Ed. 969.

"It was not until 1867 that Congress created the new forms of relief on matters not appearing in the judgment roll `in addition\' to that previously available. 14 Stat. 385, 28 U.S. C. § 2241 et seq. The determination of these rights has been held not res judicata. Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989. It is obvious that since these additional rights were created by Congress, Congress could take them away or, as here, confine their litigation to the § 2255 proceeding."

Petitioner, having failed to appeal from the denial of his motion under § 2255, may not now question either the ruling on that motion, or the validity of his sentence, by use of habeas corpus.

Petitioner fares no better if his application for writ of habeas corpus is treated as a second motion under § 2255. That statute provides that the sentencing Court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. Appellant insists in his brief that the third, fourth, fifth and sixth grounds of the habeas corpus application include new questions not advanced in his first § 2255 motion. An examination of...