Mathis v. United States

• Decision Date: 25 October 1966
• Docket Number: No. 10335.,10335.
• Citation: 369 F.2d 43
• Parties: Robert T. MATHIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

369 F.2d 43 (1966)

Robert T. MATHIS, Appellant, v. UNITED STATES of America, Appellee.

No. 10335.

United States Court of Appeals Fourth Circuit.

Argued May 3, 1966.

Decided October 25, 1966.

Harry J. Haynsworth, IV, Greenville, N. C., (Court-assigned counsel) for appellant.

Alton T. Cummings, Asst. U. S. Atty., (Robert H. Cowen, U. S. Atty., on the brief) for appellee.

Before SOBELOFF, BOREMAN and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Circuit Judge:

From the District Court's denial of his petition for a writ of error coram nobis, Robert T. Mathis prosecutes this appeal.

On September 19, 1961, Mathis, after waiving counsel, pleaded guilty to a charge of falsifying a United States Army voucher for reimbursement of travel expenses, in violation of 18 U.S. C.A. § 1001. He was sentenced to a prison term of one year and one day, suspended, however, on two years probation and on the special condition that he make restitution.

A federal bench warrant was issued on June 5, 1962, for his arrest as a parole violator. On June 21, 1962, before the warrant was served, he was taken into custody by Florida officials on a charge of a state crime and a federal detainer was then lodged with the state officials. Mathis was convicted of the state offense on February 18, 1963, and is presently serving a sentence therefor in Florida.

Before filing his petition for a writ of coram nobis, Mathis made two unsuccessful attempts to obtain relief under 28 U.S.C.A. § 2255. In his first section 2255 petition he complained that the federal bench warrant, though issued earlier than the state warrant, was not served until after he had been taken into state custody and that this amounted to a waiver of federal jurisdiction and foreclosed the filing of a detainer. The District Court denied relief and we dismissed the appeal as frivolous.¹ Mathis' second section 2255 petition, in which he attacked both the voluntariness of his guilty plea and the validity of his waiver of counsel, was denied by the District Court without a hearing on the ground that Mathis was not "in custody under sentence of a court established by Act of Congress" as required by section 2255. Again, we dismissed Mathis' appeal.²

In petitioning for the writ of coram nobis, Mathis raises the same contentions as in his second section 2255 petition. In his brief and on oral argument. the United States Attorney, with admirable candor, concedes that the trial judge's explanation to Mathis of his right to appointed counsel was insufficient under Rule 44 of the Federal Rules of Criminal Procedure, and that Mathis' waiver of counsel was therefore invalid.³ Mathis also contends that the Assistant United States Attorneys in charge of the prosecution offered to get him probation if he would plead guilty and make restitution, and that this deprived his guilty plea of its voluntary character. The transcript shows that on the morning of September 19, 1961 Mathis had pleaded not guilty to the indictment, but that after lunch he changed his plea to guilty. One of the Assistant United States Attorneys acknowledged in open court that he had spoken to Mathis during the lunch hour, and he did not deny making the claimed promise. Before accepting the guilty plea the Judge advised the defendant that he could withdraw his plea of not guilty as long as this was done "freely and voluntarily and without any threats or coercion or promises." Upon recommendation of the prosecutor, the trial judge then placed the defendant on probation conditioned on his making restitution.

When Mathis filed his petition for a writ of coram nobis the District Court held that the guilty plea was voluntary, but declared that the facts alleged in the petition would ordinarily warrant granting coram nobis to determine the voluntariness of the waiver of counsel. The court, however, felt constrained to deny the writ solely because the petitioner was suffering no "present restraint or imposition" from the conviction.⁴

Since the United States concedes that the conviction should be set aside on the ground of the inadequacy of the waiver of counsel, we have no occasion to express an opinion on the voluntariness of the guilty plea.⁵

The sole issue on this appeal is whether coram nobis is available to challenge a conviction and sentence which the petitioner is to serve in the future, in the absence of an allegation that his present eligibility for parole is impaired.⁶

Coram nobis was available at common law to correct errors of fact not appearing in the record.⁷ It has been adopted by many states and its use broadened beyond the limited grounds recognized at common law.⁸ Lower federal courts have for some time employed the writ as another weapon in the defendant's arsenal of post-conviction remedies.⁹ In 1954, the Supreme Court sanctioned the use of the writ to challenge a conviction procured "under circumstances compelling such action to achieve justice."¹⁰ In United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), the defendant pleaded guilty to a federal charge and was sentenced to a term of four years, which he served. Subsequently, upon his conviction on a state charge and enhanced sentence as a second offender, he applied for a writ of error coram nobis to set aside the federal conviction on the ground that he had not been furnished counsel, in violation of his constitutional rights. The Court held the writ available under the all-writs section of the Judicial Code.¹¹ It rejected the argument that the "in custody" provision of section 2255 "should be construed to cover the entire field of remedies in the nature of coram nobis in federal courts." 346 U.S. at 510, 74 S.Ct. at 252. The Court said:

"We see no compelling reason to reach that conclusion. In United States v. Hayman, 342 U.S. 205, 219 72 S.Ct. 263, 272, 96 L.Ed. 232, we stated the purpose of § 2255 was `to meet practical difficulties\' in the administration of federal habeas corpus jurisdiction. We added: `Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners\' rights or collateral attack upon their convictions.\' We know of nothing in the legislative history that indicates a different conclusion. We do not think that the enactment of § 2255 is a bar to this motion, and we hold that the District Court has power to grant such a motion for coram nobis." 346 U.S. at 510-511, 74 S.Ct. at 252.¹²

Although the sentence had already been served the Court did not think this significant since the conviction might carry with it future adverse consequences. "Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that his conviction was invalid."¹³

While in Morgan the defendant's status as a second offender constituted a "present imposition" flowing from the prior conviction, the Court did not expressly or impliedly lay down such a requirement for the granting of the writ. Indeed, to the extent that the "present imposition" doctrine is analogous to the "in custody" proviso in section 2255, the Court implicitly rejected it as a prerequisite to the grant of coram nobis by holding that Congress did not intend to restrict other post-conviction remedies by enacting section 2255. This was recognized by the District of Columbia Circuit in Thomas v. United States, 106 U.S.App.D.C. 234, 271 F.2d 500 (1959). There the court, after denying relief under section 2255 on the ground that the petitioner was not presently confined under the conviction being attacked, treated the petition as one requesting coram nobis and granted relief. The court stated that

"The net of the situation is that while Congress, in Section 2255, was affording a new remedy for post conviction attacks on a federal sentence, no congressional purpose can be divined to exclude ancient remedies where the new one does not reach the particular problem." 271 F.2d at 504.

The District Court, in adopting the view that coram nobis is available only upon a showing of present adverse effect from the conviction sought to be set aside, relied heavily upon Martin v. Commonwealth of Virginia, 349 F.2d 781 (4th Cir. 1965), and Young v. United States, 337 F.2d 753 (5th Cir. 1964). These cases do not in our opinion support the District Court's conclusion. Martin held that the "in custody" provision of 28 U.S.C.A. § 2241 was satisfied by an allegation that the petitioner's present right to be considered for parole was impaired by the conviction sought to be vacated, even though the petitioner had not yet commenced serving the sentence imposed under that conviction. Relief was held available in that proceeding and there was no attempt or need to resort to coram nobis. In Young, the Fifth Circuit denied section 2255 relief on the ground that the petitioner, a state prisoner seeking to vacate a prior federal sentence under which he had presumably been paroled, was not "in custody" under sentence of a federal court. Assuming arguendo that the "custody" in the present case is insufficient to satisfy Martin and is comparable to that found inadequate in Young, the reasoning of neither case suggests that coram nobis relief should be denied in the present circumstances. While it is true that the court in Young went on to consider the section 2255 petition as an application for a writ of coram nobis, and then denied relief, the same court, less than a year later, granted a writ of coram nobis to contest a sentence service of which would not begin for 15 years. See Johnson v. United States, 344 F.2d 401 (5th Cir. 1965). Our District Court distinguished Johnson on the ground that there two convictions were being challenged and that if the earlier one was set aside Johnson would immediately be in custody under the later one. However, Johnson does not rely on this fact and its reasoning is much broader than the narrow ground...