McDowell v. United States

• Decision Date: 17 September 1964
• Docket Number: No. 15597.,15597.
• Citation: 336 F.2d 435
• Parties: Johnnie Clifford McDOWELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

336 F.2d 435 (1964)

Johnnie Clifford McDOWELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 15597.

United States Court of Appeals Sixth Circuit.

September 17, 1964.

William K. Hoskins, Cincinnati, Ohio (Court appointed), for appellant.

Ottis B. Meredith, Asst. U. S. Atty., Chattanooga, Tenn. (J. H. Reddy, U. S. Atty., Chattanooga, Tenn., on the brief), for appellee.

Before MILLER and O'SULLIVAN, Circuit Judges, and BAILEY BROWN, District Judge.

BAILEY BROWN, District Judge.

Johnnie Clifford McDowell, movant-appellant, seeks a rehearing of his direct appeal of his conviction, or a new trial on his direct appeal without a rehearing, or a reversal of the Trial Court in refusing to hold a hearing on and in denying two motions to vacate the life sentence imposed upon him. It will be necessary, to define the unusual issues presented by this appeal, to recount the rather involved history of these proceedings.

McDowell was convicted in 1959 in the District Court for the Eastern District of Tennessee of transporting in interstate commerce a girl of eleven years of age who had been kidnapped by him and who had been raped by him before her liberation (Title 18 U.S.C. § 1201). At this trial he was represented by retained counsel. This conviction was affirmed on direct appeal to this Court. McDowell v. United States, 283 F.2d 867 (1960), cert. denied 366 U.S. 937, 81 S.Ct. 1664, 6 L.Ed.2d 848 (1961). On this direct appeal, McDowell was represented by court-appointed counsel.

McDowell filed in 1961 a motion to vacate sentence under Title 28 U.S.C. § 2255, charging that, on the direct appeal, the transcript had been falsified by the court reporter. Specifically, he charged that the testimony of the prosecuting witness had been deleted and a false account substituted, and he charged that an erroneous and prejudicial instruction to the jury had been deleted. The trial judge reviewed the transcript and, based on his memory of the proceedings at the trial, concluded that the charges of falsification of the transcript were without foundation and denied the motion to vacate the sentence without a hearing.

On appeal to this Court, this denial by the Trial Court was affirmed. 305 F.2d 12 (1962), cert. denied 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 234 (1962), rehearing denied 371 U.S. 960, 83 S.Ct. 511, 9 L.Ed.2d 508 (1963). On this appeal, McDowell did not request and did not have counsel. In its opinion, this Court recognized that this alleged falsification of the transcript might justifiably not have been corrected by counsel on the direct appeal because the court-appointed attorney who represented McDowell here had not represented him at the trial and McDowell then did not have a copy of the transcript, and therefore they would not have known of the falsification of the transcript if in fact it had been falsified. This Court then went on to consider whether the Trial Court should have held a hearing on the charges contained in the motion; it concluded that, as the trial judge had been able to satisfy himself from memory that the transcript was not falsified, a hearing was not necessary and accordingly affirmed the action of the Trial Court.

Before this Court now for review is the denial of a second motion to vacate sentence made in the Trial Court, this time under Rule 35 of the Rules of Criminal Procedure. (We are treating this motion as having been made, as it should have been made, under Title 28 U.S.C. § 2255.) The Trial Court likewise denied this motion without a hearing. It is not necessary to set out here all the grounds contained in this second motion to vacate because except for the contention that the Trial Court erred in refusing to hold a hearing on the prior motion to vacate, they have been abandoned by court-appointed counsel representing McDowell on this appeal. These other grounds are obviously without merit and should have been abandoned.

On appeal in this Court, McDowell, through his able and ingenious court-appointed counsel, broadens his attack beyond the contentions made in the motion in the Trial Court. As a basis for the broadened attack, counsel now brings to this Court's attention the fact that the trial transcript does not contain the proceedings in connection with the selection of the jury and does not contain the argument of counsel to the jury and that there is actually a gap or skip in the page numbers of the transcript at the point in the transcript where the argument would have appeared. This fact has never been called to the attention of the Trial Court. It is on the incompleteness of the transcript and on the possibility of prejudicial error in the argument to the jury of Government counsel that McDowell now seeks relief in this court. Counsel does not represent to the Court that the argument to the jury of Government counsel was in fact improper and prejudicial, though he does state that McDowell has so advised him, and does not represent that any such error was preserved. He merely represents that the argument may have been improper and prejudicial and that this error may have been preserved.

Counsel urges upon this Court several proposals. We deal with them in the chronological order of the proceedings.

The first proposal is that we treat this present appeal as in the nature of a coram nobis proceeding directed to our judgment affirming the conviction on the direct appeal and, so treated, grant certain relief. In this connection, it is pointed out that Title 28 U.S.C. § 753 (b) requires that the court reporter "* * * record * * * all proceedings in criminal cases had in open court * * *", and further that this Court heard the direct appeal without the entire record before it. Accordingly, it is argued that the missing parts of the record should be supplied if possible and that this Court rehear the direct appeal on the complete record. Alternatively, it is argued that, if the missing parts of the record cannot be supplied, we should without a rehearing grant a new trial.

It is true that the Supreme Court in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) recognized that in a proper case a federal court may entertain a writ of error coram nobis. This opinion is not very explicit as to what constitutes a proper case, but it does state at page 507 and at page 510, 74 S.Ct. at page 250:

"The writ of coram nobis was available at common law to correct errors of fact. It was allowed without limitation of time for facts that affect the `validity and regularity\' of the judgment, and was used in both civil and criminal cases. While the occasions for its use were infrequent, no one doubts its availability at common law."

* * * * * *

"Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through his extraordinary remedy only under circumstances compelling such action to achieve justice."

A compelling reason why this Court cannot treat this appeal as a coram nobis proceeding directed to our affirmance of the conviction on the direct appeal is that, simply stated, this appeal is not a writ of error coram nobis. It is, on the contrary, an appeal of the action of the Trial Court in refusing to hold a hearing on and in denying the second motion to vacate sentence. Moreover, even if we could so treat this present appeal, it is clear that coram nobis will not lie. First, the omissions from the transcript were obvious on the face of the record at the time the direct appeal was heard and could have been corrected at the instance of McDowell's counsel at that time. Secondly, there is no showing here, by...