McDonald v. United States
| Decision Date | 23 March 1966 |
| Docket Number | No. 8420.,8420. |
| Citation | 356 F.2d 980 |
| Parties | Berl Estes McDONALD, Appellant, v. UNITED STATES of America, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
B. F. Napheys, III, Denver, Colo., for appellant.
Benjamin E. Franklin, Topeka, Kan. (Newell A. George, Topeka, Kan., on brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and SETH, Circuit Judges.
Pursuant to remand on the former appeal (McDonald v. United States, 10 Cir., 341 F.2d 378) the trial court conducted a full evidentiary hearing touching the petitioner's mental competency at the time of his guilty plea. The court found that at the time of his guilty plea he was mentally competent to and did consult with his appointed counsel; that he had a rational and factual understanding of the charges and the nature of the proceedings against him; that he was mentally capable of assisting his counsel and fully understood the effect of his guilty plea; that the plea was entered voluntarily without any coercion or persuasion by anyone; that at the time of his sentence more than a month later he was mentally competent and did consult with his appointed counsel; that at that time he had a rational understanding of the nature of the proceedings against him; and that he was well represented by competent counsel at all stages of the proceedings who gave him the best possible advice, but that the petitioner understandingly declined to follow or heed such advice.
The trial court granted leave to appeal in forma pauperis. Counsel was appointed here and the petitioner has again raised the question of his mental competency and the adequacy of the assistance of counsel. When, at the bar of the court, it was suggested that petitioner was not serving the sentence he had attacked both in the former appeal and on this appeal, permission was granted the Government to furnish formal proof of the fact and to move to dismiss the proceedings under Section 2255.
In the supplemental brief by able appointed counsel, it is conceded that he is not now serving the sentence he attacks, and that he cannot do so under 2255. But, petitioner does not concede that the proceedings should be dismissed. On the contrary, it is suggested that his original motion was "brought under Section 2255 U.S.C., or alternatively as an application for a writ of error coram nobis and also under Rule 32(d) F.R.Crim.P., and that he is entitled to have this appeal considered as a denial of a writ of coram nobis or for relief under Rule 32(d).
It is true that to the point of argument on appeal, the proceedings was treated as a motion for relief under 2255. And see McDonald v. United States, supra. And, there is, to be sure, both procedural and substantive differences in the offices which 2255 and coram...
To continue reading
Request your trial
-
Booker v. State of Arkansas
...was also correct and inevitable. Procedurally, coram nobis is a step in the original criminal proceeding itself. McDonald v. United States, 356 F.2d 980, 981 (10 Cir. 1966), cert. denied 385 U.S. 936, 87 S.Ct. 298, 17 L.Ed.2d 298; 18 Am.Jur.2d, Coram Nobis, § 6, p. 460 (1965). Relief by the......
-
Deckard v. United States
...Kiger v. United States, 315 F.2d 778, 779 (7 Cir. 1963), cert. denied 375 U.S. 924, 84 S.Ct. 270, 11 L.Ed.2d 166; McDonald v. United States, 356 F.2d 980, 981 (10 Cir. 1966), cert. denied 385 U.S. 936, 87 S.Ct. 298, 17 L.Ed.2d 216. We are to bear in mind, however, that "error coram nobis re......
-
U.S. v. Balistrieri
...this language, as did the court in United States v. Marcello, supra. Other courts have echoed the Morgan language: McDonald v. United States, 356 F.2d 980 (10th Cir. 1966); Abel v. Tinsley, 338 F.2d 514 (10th Cir. 1964); Peterson v. State of Missouri, 355 F.Supp. 1371 (W.D.Mo.1973). None of......
-
Simon v. United States
...v. United States, 358 F.2d 946 (10th Cir., 1966), cert. den. 385 U.S. 872, 87 S.Ct. 145, 17 L.Ed.2d 100 (1966); McDonald v. United States, 356 F.2d 980 (10th Cir., 1966), cert. den. 385 U.S. 936, 87 S.Ct. 298, 17 L.Ed.2d 216 (1966); Brokaw v. United States, supra; cf. Heiden v. United State......