McKnight v. U.S., 73-3993

• Citation: 507 F.2d 1034
• Decision Date: 12 February 1975
• Docket Number: No. 73-3993,73-3993
• Parties: Hershel Hiram McKNIGHT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1034

507 F.2d 1034

Hershel Hiram McKNIGHT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 73-3993.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1975.

Rechard D. Pullman, Dallas, Tex. (Court-appointed), for petitioner-appellant.

Robert W. Wilson, Asst. U.S. Atty., Lubbock, Tex., W. E. Smith, Asst. U.S. Atty., Ft. Worth, Tex., for respondent-appellee.

Appeal from the United States district Court for the Northern District of Texas.

Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

This appeal is from the district court's dismissal of Hershel Hiram McKnight's motion for post conviction relief pursuant to Title 28, U.S.C., Sec. 2255. Because McKnight's uncontested factual allegations establish a bona fide controversy, requiring resolution by an evidentiary hearing and resultant findings, we reverse and remand.

McKnight was convicted in 1971 on both counts under which he was indicted: Count 1 charged him with conspiracy to rob a bank in violation of Title 18, U.S.C., Sec. 371; Count 2 charged him with carrying a firearm during the commission of a felony in violation of Title 18, U.S.C., Sec. 924(c)(2). On the same day that sentence was imposed, March 18, 1971, McKnight filed a notice of appeal. Three months later, McKnight joined with his attorney in a motion to dismiss the appeal. We granted this motion by an administrative order dated June 18, 1971. Thereafter, on January 11, 1972, McKnight filed a pro se motion in the district court seeking Sec. 2255 relief and alleging twelve grounds therefor. The district court denied relief on the merits and we affirmed without written opinion. McKnight v. United States, 5 Cir. 1972, 468 F.2d 951. ¹ McKnight then filed this, his second collateral attack, in which this, his alleged that his conviction under Count 2 of the indictment was contrary to law because (1) the district court lacked jurisdiction under Title 18, U.S.C., Sec. 924(c)(2) in that interstate commerce was unaffected; (2) the indictment omitted the word 'unlawfully'; (3) the jury instructions were erroneous; and (4) the Grand Jury misinterpreted the charges against him. Declining to reach the merits, the district court denied relief on the following grounds:

'The motion and the files and records of the case conclusively show that the Petitioner is entitled to no relief. Each of the challenges urged by Petitioner could have been raised on direct appeal. The record affirmatively reflects a conscious election on the part of Petition not to appeal by his motion to the United States Court of Appeals for the Fifth Circuit that his appeal be dismissed. Failure to appeal, like failure to raise a known question of unconstitutionality, is a bar to Sec. 2255 relief where a deliberate choice not to appeal is made by conscious election. Larson v. United States, 5th Cir. 1960, 275 F.2d 673.'

McKnight timely took the instant appeal, alleging that he was sick and badly in need of immediate and extensive medical care at the time his direct appeal was pending; that he was informed by his own counsel, local jail authorities and the United States Marshal that the Lubbock, Texas jail, where he was to remain incarcerated during his appeal, could not provide him with adequate medical care; that these same officials told him that if he would dismiss his appeal he would be removed to a federal penitentiary where proper medical attention could be provided; that his fear of continuing without proper medical care overcame his desire to pursue his direct appeal at which time he filed his motion to dismiss. In sum, McKnight alleges that the district court erred in denying his Sec. 2255 motion without a hearing solely on the grounds that he had dismissed his direct appeal. We agree.

The district court correctly cited Larson for the principle that a failure to appeal will normally bar Sec. 2255 relief where a deliberate choice not to appeal is made by conscious election. The emphasis phasis is not merely on the fact that an appeal was not taken, but rather on why the appeal was not taken. In Larson the evidence showed that the appeal was not taken for fear of receiving a harsher penalty in the event of a new trial. ² The decision was tactical.

The Supreme Court has specified that 'the Sec. 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided at or before trial and by way of appeal-- e.g., motion to suppress under Red.Rule Crim.Proc. 41(e) or by appeal under Red.Rule App.Proc. 4(b).' Kaufman v. United States, 1969, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1075 n. 8, 22 L.Ed.2d 227. But where a district court intends to use such retionale in denying a Sec. 2255 motion, this Court requires that the lower court's decision not only indicate a finding of deliberate bypass, but also reflect sufficient evidentiary development therefor. See Collier v. Estelle, 5 Cir. 1974, 488 F.2d 929; Montgomery v. Hopper, 5 Cir. 1973, 488 F.2d 877; Montgomery v. United States, 5 Cir. 1972, 469 F.2d 148; Bonaparte v. Smith, 5 Cir. 1971, 448 F.2d 385; Johnson v. Smith, 5 Cir. 1971, 449 F.2d 127. ³ Thus, in Morris v. United States, 5 Cir. 1974, 503 F.2d 457, the district court's denial of appellants' Sec. 2255 motions on the ground that they consciously elected to forego direct appeal was reversed and remanded by this Court for an evidentiary hearing on whether 'Appellants' right to appeal was voluntarily and understandingly waived.' 503 F.2d at 458. The appellants in Morris had allegedly dismissed their appeals so they would be transferred to federal facilities where they could attack their convictions without the harassment they allegedly experienced at the local prison. Although they did not specify in their Sec. 2255 motions that their abandonment of the right to appeal was involuntary, this court found that their factual allegations, if proven, would have the same result. We therefore remanded to the district court for a specific finding as to this voluntariness.

The foregoing makes it clear that McKnight's allegations, if true, raise a bona fide issue as to voluntariness of this dismissal of the direct appeal. It may be argued, however, that McKnight failed to issuably raise these allegations before the district court. While these factual allegations concerning dismissal of the prior appeal were not alleged in the present Sec. 2255 application, this may not be dispositive. According to McKnight's argument before this court, his allegations concerning the lack of available medical treatment at the Lubbock jail were initially raised in an affidavit attached to a Motion to Reinstate Appeal in Forma Pauperis presented to this court. ⁴ The motion was denied by a panel of this court on December 3, 1971. Although this motion and accompanying affidavit were not made a part of the record presently before us, there was sufficient reference made to them to have placed the district court on notice of the situation. In McKnight's reply brief in his first collateral attack he stated:

'It is evident appellee has failed to understand why appellant waived his direct appeal. The Lubbock jail is a 'Hell Hole', appellant was extremely sick, and needed medical attention. It was either stay at the jail for the appeal (which he was told by Marshal's Attorney and Prosecutor), or die from lack of medical attention. The trip from Leavenworth would not be a vacation as implied by learned counsel. The motion for postconviction relief was for the purpose of correcting an injustice, nothing else.'

The government made the above-quoted portion of McKnight's reply brief a part of this record by appending it to the government's Answer to McKnight's present Sec. 2255 application.

We will not assume abandonment of the right to appeal from a criminal conviction unless facts clearly supporting such an assumption are developed on the record. Morris v. United States, 5 Cir. 1974, 503 F.2d 457, 458; Chapman v. United States, 5 Cir. 1972, 469 F.2d 634, 637; McKinney v. United States, 5 Cir. 1968, 403 F.2d 57, 59. Thus, to reiterate what we said in Morris, 503 F.2d at 459:

'Although this case raises the question of waiver in a somewhat unorthodox context in that appellants' petitions cannot be fairly read as being bottomed on the denial of the right to appeal, we nevertheless treat the issue of waiver as being incorporated into the petition in the absence of evidence that the right to appeal was effectively abandoned, bearing in mind that the court below relied on waiver to...