McFadden v. United States

Citation312 F. Supp. 820
Decision Date30 April 1970
Docket NumberNo. 70 C 73(2).,70 C 73(2).
PartiesCarl McFADDEN, Petitioner, v. UNITED STATES of America, Respondent.
CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)

Carl McFadden pro se.

Deniel Bartlett, Jr., U. S. Atty., for respondent.

MEMORANDUM

MEREDITH, District Judge.

Carl McFadden was convicted in 1957 of three violations each of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a) and given six concurrent five-year sentences. No appeal was taken from the convictions. McFadden served the sentences and was released from custody. In 1966 he was convicted on two counts of violating 26 U.S.C. § 4704(a) and two counts of violating 26 U.S.C. § 4705(a). He was sentenced to ten years imprisonment on each count with two counts to be concurrent and two to be consecutive for a total sentence of twenty years. These convictions were affirmed on appeal. McFadden filed a motion under 28 U.S.C. § 2255 to vacate this second conviction. The motion was denied.

McFadden has now filed a writ of error coram nobis under 28 U.S.C. § 1651 alleging he had ineffective assistance of counsel at his first conviction. He states that his retained counsel failed to inform him of his right to appeal in forma pauperis, and that as a result he did not appeal. He further alleges that the result of not having his first conviction reversed on appeal was his being sentenced as a second offender on the 1966 convictions. (An information describing him as a person with a prior conviction was filed at the time of the sentencing on the 1966 convictions in accordance with 26 U.S.C. § 7237(c) (2), although the Court made no mention of the fact McFadden was a second offender, and the sentences imposed are consistent with McFadden being either a first or second offender.)

The motion in the nature of a writ of error coram nobis can be brought under 28 U.S.C. § 1651 and is available under circumstances compelling such action to achieve justice. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). The fact that subsequent convictions may carry heavier penalties may be such a circumstance. Id. at 512, 513, 74 S.Ct. 247. The Court will consider this motion as a motion in the nature of a writ of error coram nobis and not a motion to vacate sentence under 28 U.S.C. § 2255. While the "in custody" provisions of 28 U.S.C. §§ 2241, 2254, and 2255 have been relaxed, Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); it is the opinion of the Court that the Morgan case is controlling on the facts involved here. The petitioner is in custody, but he is challenging a sentence which he had already served and from which he had been released for at least four years prior to the conviction under which he is now in custody.

The petitioner could have taken an appeal as a matter of right. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Although the right to appeal in forma pauperis under 28 U.S.C. § 1915 is not absolute, an indigent must be afforded counsel on appeal whenever he challenges a certification that the appeal is not taken in good faith, Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed. 2d 593 (1957). Where the only appeal a defendant has as a matter of right is involved, it is unconstitutional to make exercise of that right depend upon his ability to retain counsel, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed.2d 811 (1963); Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964). Failure to advise a defendant of his appeal rights or to file an appeal after being requested to do same can be characterized as ineffective assistance of counsel, Williams v. United States, 402 F.2d 548 (8th Cir. 1968).

If this were a motion to vacate sentence under 28 U.S.C. § 2255, the proper remedy in a case such as this would be to vacate his sentence, resentence him, and let the appeal process begin to run from the date of the resentencing, Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969); Williams v. United States, supra. A hearing to determine whether or not the petitioner knew of his right to appeal as an indigent before the expiration of his appeal time may be required by some circuits. U. S. ex rel. Smith v. McMann, 417 F.2d 648 (2nd Cir. 1969). This, however, is not a motion under section 2255, but a motion in the nature of writ of error coram nobis and for that reason it is the opinion of the Court that petitioner has failed to state facts upon which relief can be granted. Here, the petitioner is challenging a thirteen-year-old conviction. He has already served the sentence imposed and had been released from it for several years before he was convicted again. Yet, in his petition, he fails to allege any errors which would have resulted in the reversal of his conviction on appeal. In fact, he makes no allegation of error at all. If this were a motion under 28...

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3 cases
  • McFadden v. United States, 20351.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 4, 1971
    ...do same can be characterized as ineffective assistance of counsel, Williams v. United States, 402 F.2d 548 (8th Cir. 1968)." 312 F.Supp. 820, 821 (E.D.Mo. 1970). The Court pointed out that "if this were a motion to vacate sentence under 28 U.S.C. § 2255, the proper remedy in a case such as ......
  • Chresfield v. United States, Crim. No. 20548.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 17, 1974
    ..."it is necessary to allege grounds for appeal in order to state grounds for relief under this unusual writ." McFadden v. United States, 312 F.Supp. 820 (E.D.Mo.1970). Secondly, the court could find no adverse legal consequences flowing from the first conviction because, although he qualifie......
  • Sampson v. State, KCD
    • United States
    • Court of Appeal of Missouri (US)
    • July 31, 1978
    ...... See: State v. Scott, 492 S.W.2d 168 (Mo.App.1973); United States v. Neff, 525 F.2d 361 (8th Cir. 1975); McFadden . Page 339. v. United States, 312 F.Supp. ......

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