Mathis v. United States

• Decision Date: 05 October 1965
• Docket Number: Civ. No. 683.
• Citation: 246 F. Supp. 116
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Robert T. MATHIS, Petitioner, v. UNITED STATES of America, Respondent.

246 F. Supp. 116

Robert T. MATHIS, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 683.

United States District Court E. D. North Carolina, Fayetteville Division.

October 5, 1965.

BUTLER, Chief Judge.

FACTS

This is an application by a federal prisoner for writ of error coram nobis to vacate and set aside the judgment and sentence entered upon a plea of guilty to the charge of falsifying a United States Army voucher for reimbursement of travel expenses in violation of 18 U.S. C.A. § 1001. The execution of a prison sentence of a year and a day was suspended and the petitioner was placed on probation for two years upon a special condition that he make restitution.

Petitioner is now serving a term of six months to five years in a Florida state prison, pursuant to state conviction subsequent to the federal sentence. Because of certain violations of the probationary sentence entered in the federal case in 1961, a probation violator's warrant has issued against petitioner and a detainer has been filed. The thrust of petitioner's complaint is that because of defects in the federal conviction, the detainer constitutes unconstitutional impositions on his liberty. He seeks to have the federal conviction declared null and void to erase the onus of probation and detainer, and to avoid the probationary condition requiring restitution.

Petitioner alleges two constitutional defects, of importance here, at his trial in 1961 to render his conviction void:

First, petitioner alleges that he entered a plea of guilty because he was "intimidated" by the prosecuting attorney. He alleges, and the record shows, that he entered a plea of not guilty to the charge. Subsequently, he says, two United States attorneys called him aside and advised him that they did not want to send him to prison since only $214.80 was involved, and that if he would change his plea to guilty they would see that he would get a probationary sentence provided he would agree to make restitution. Petitioner avers that he did not wish to change his plea "knowing he was innocent, but didn't know how to establish his innocence and became intimidated and further became the subject of the United States Attorney's guile."¹ Petitioner admits, and the record shows, that he did change his plea to guilty after the court had instructed petitioner that he could proceed on the not guilty plea or withdraw it and enter a plea of guilty, "provided you do so freely and voluntarily without any threats or coercion or promises."² The guilty plea was thereupon entered.

Second, petitioner alleges that he was not apprised of his right to court-appointed counsel. The record shows that petitioner told the court he would like to have counsel, but that he had not employed an attorney. The court thereupon inquired whether petitioner desired "to consult with an attorney and make arrangements with one to represent you," whereupon petitioner replied, "No, sir." The court then said: "Let the record show the defendant waives counsel."

Petitioner does not seek relief under 28 U.S.C.A. § 2255. Application for such relief was denied petitioner by this court in an order dated February 26, 1964, on the ground that § 2255 is available only to federal prisoners in custody under sentence of a federal court. Nor does he seek relief under 28 U.S.C.A. § 2241 et seq., which relief can be afforded only by a district court within the territorial jurisdiction wherein the petitioner is detained.

QUESTION PRESENTED

The question presented is whether petitioner, serving a sentence pursuant to a state conviction, can employ the common law writ of error coram nobis to challenge a prior federal conviction on the ground he was not advised of his right to counsel and that his guilty plea was coerced, notwithstanding petitioner's failure to allege facts constituting a present restraint on his liberties.

LEGAL STATUS

At common law, the writ of error coram nobis enabled the court rendering judgment to reconsider it and grant relief from errors of fact not appearing on the face of the record. United States v. Morgan, 346 U.S. 502, fn. 9 p. 507, 74 S.Ct. 247, 98 L.Ed. 248 (1954), 4 C.J.S. Appeal and Error § 9 (1957), 49 C.J.S. Judgments §§ 311-313 (1947). The extraordinary writ has been expressly abolished in the federal civil practice, Rule 60(b), Fed.R.Civ.P. (1960), but it has survived in the criminal practice by virtue of 28 U.S.C.A. § 1651(a) (1950)³ — the "all-writs" section — to the extent that it has not been replaced by a statutory provision. United States v. Morgan, supra. Hence, the writ will not lie where either 28 U.S.C.A. § 2255, or 28 U.S.C.A. § 2241, is available to a petitioner; but a proceeding under § 2255 has been construed as a petition for writ of error coram nobis where petitioner stated a ground for relief, but was not in "custody" so as to meet the requirements of § 2255. United States v. Morgan, supra, Thomas v. United States, 106 U.S.App.D.C. 234, 271 F.2d 500 (1959), Burns v. United States, 321 F.2d 893 (8 Cir.), cert. denied, 351 U.S. 910, 76 S.Ct. 703, 100 L.Ed. 1445, rehearing denied, 351 U.S. 958, 76 S.Ct. 851, 100 L.Ed. 1481 (1963), Woykovsky v. United States, 309 F.2d 381 (9 Cir. 1962), cert. denied, 374 U.S. 838, 83 S.Ct. 1889, 10 L.Ed.2d 1059 (1963).

Because of the breadth of current federal statutes and rules, the writ of error coram nobis appeared until recently to have been consigned to limbo. Then came the Morgan case, supra, in which a petitioner brought coram nobis in a federal district court to have declared void a prior conviction in that court, on the ground his constitutional right to counsel had been violated. Petitioner had served the federal term, and was convicted on a state charge and sentenced to a longer term as a second offender because of the prior federal conviction. The Court held coram nobis was available to petitioner to show the illegality of the federal conviction, which could not be attacked under § 2255 because petitioner was no longer in federal custody.

The Morgan case has resulted in a growing tide of petitions under coram nobis where relief through federal statutory provisions is not available. The writ is available both where the conviction complained of has been served, United States v. Morgan, supra, Shelton v. United States, 242 F.2d 101, set aside on rehearing, 246 F.2d 571 (5 Cir.), reversed and remanded, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958), United States v. Di Martini, 118 F.Supp. 601 (S.D.N.Y.1953), and where it is yet to be served, Moon v. United States, 106 U.S. App.D.C. 301, 272 F.2d 530 (1959), Johnson v. United States, 344 F.2d 401 (5 Cir. 1965), Burns v. United States, supra. But a common thread running through the cases is that the petitioner afforded relief through coram nobis has specifically shown a present adverse effect from the unconstitutional conviction.

Thus, in Morgan, the illegal federal proceeding resulted in a longer term for petitioner as a state offender; in Johnson, one of the convictions attacked would begin only after completion of another term then being served, but the validity of both the prior and the later convictions were in question in the coram nobis proceeding; in Shelton, petitioner was conditionally released under 28 U.S. C.A. § 2154, but could not leave the place of his residence without consent of his probation officer; and in Di Martini, the federal conviction was taken into consideration in fixing the state sentence then being served by petitioner. Thus, in each of the cases, the conviction attacked had resulted in a present restraint of one kind or another.

Also of importance is the recent case of Martin v. Commonwealth of Virginia, 349 F.2d 781 (4 Cir. 1965). There, the court was considering a petition in habeas corpus, not coram nobis. It was held that federal habeas corpus was available to declare void a sentence not yet being served if it affected petitioner's right to parole. Because the convictions complained of barred petitioner's right to parole, the court said, he is "in custody" within the purview of 28 U.S.C.A. § 2241 and hence entitled to relief. It was petitioner's present eligibility for parole, which petitioner had alleged, upon which the court grounded its decision.

In Young v. United States, 337 F.2d 753 (5 Cir. 1964), petitioner in a Florida state penitentiary proceeded under § 2255 to attack a federal detainer which he alleged grew out of an illegal federal sentence. The Court of Appeals, affirming the district court finding of no relief because of lack of federal custody, said:

"Our record does not disclose how Young petitioner got out of federal prison and into a Florida prison. If we were permitted to indulge in a conjecture or surmise, of which we are so critical when done by those tribunals whose decisions we review, we might conjecture or surmise that he had been given a conditional release or parole from the place where he had been confined by federal authority and had then been taken into custody by the Florida law enforcement officers. But if we had some proof of what we cannot surmise or conjecture, we would be unable to treat the conditional release or parole as federal custody to support Section 2255 jurisdiction." 337 F.2d at 756.

The court thus said in Young that § 2255 is not available to attack a federal detainer against a state prisoner, at least under the factual situation presented where petitioner made no allegations that the detainer restrained his parole from the state prison or that the federal conviction in any other way influenced his present incarceration. And reading Young with Martin, it would appear that if both § 2241 and § 2255 require a showing of present adverse effect, the same requirement should exist for relief through coram nobis.

Petitioner here raises objections which historically are cognizable through coram nobis, except that he shows no present adverse effect. The trial court seemingly erred in failing...