Meyers v. United States
| Decision Date | 27 July 1971 |
| Docket Number | No. 898,Docket 71-1107.,898 |
| Citation | 446 F.2d 37 |
| Parties | Joel Simon MEYERS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Leon Friedman, New York City (Alan H. Levine, New York Civil Liberties Union, New York City, of counsel), for appellant.
David G. Trager, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., for E. D.N.Y., of counsel), for appellee.
Before FRIENDLY, Chief Judge, SMITH and HAYS, Circuit Judges.
This is an appeal from the United States District Court for the Eastern District of New York (Walter Bruchhausen, Judge) from an order denying a motion made pursuant to 28 U.S.C. § 2255 to vacate a judgment of conviction and sentence imposed upon the appellant for violating the Selective Service Act 50 U.S.C. § 462(a) by refusing induction into the Armed Forces of the United States. The appellant's initial sentence of four years imprisonment was later reduced by Judge Bruchhausen to three years and six months. His conviction was affirmed by this court on January 28, 1969 410 F.2d 693 and certiorari was denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 255 (1969).
The appellant now seeks to reopen the question of the propriety of the use of the Allen charge at his trial, an issue which was fully considered on direct appeal from his conviction, on the grounds that there has been a change in the applicable law in the interim. The case law, however, is virtually uniform in holding that once a matter has been decided adversely to a defendant on direct appeal, it cannot be relitigated in a post-conviction collateral attack.1 This court commented on the use of section 2255 in a situation where the law is alleged to have changed in United States v. Sobell, 314 F.2d 314 (2d Cir. 1963), cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077 (1964):
There is an inevitable attraction in the position that a person convicted of a serious crime should receive a new trial whenever a later decision of the highest court indicates that, with the benefit of hindsight, a different course should have been followed at his trial in any consequential respect. Yet for courts to yield broadly to that attraction not only would cause "litigation in these criminal cases to be interminable" 332 U.S. at 182, 67 S. Ct. at 1593, but, in the sole interest of those already convicted of crime, would drastically impair the ability of the Government to discharge the duty of protection which it owes to all its citizens. * * * When a defendant who has been tried fairly in accordance with the law as it was understood at the time seeks judicial relief because of new light on a point of law affecting an aspect of his trial, his request must be balanced against the rightful claims of organized society as reflected in the penal laws. All this is the wisdom behind the doctrine that limits collateral attack on criminal judgment. 314 F.2d at 324-325.
Although several other circuits have recently either prospectively abolished the use of the Allen charge, modified its language, or recommended against its continued employment,2 this court has recently reaffirmed the use of the charge to encourage a verdict in the face of an apparent deadlock in United States v. Hynes, 424 F.2d 754 (2d Cir. 1970):
Absent coercive circumstances outside the charge itself, we are satisfied that the so-called "Allen charge" does not unconstitutionally deprive a defendant of his right to a unanimous verdict rendered upon the conscientious consideration of twelve impartial jurors, notwithstanding the different view adopted within the last few months in two sister circuits. 424 F.2d at 757.
The appellant has failed, therefore, to put forward any compelling reason why the question of the use of the Allen charge, previously fully considered on direct appeal, should now be reopened in this collateral proceeding.
The second issue raised by the appellant involves an allegation of unconstitutional discrimination in the...
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Kelly v. State
...differing view, see 22 Syra.L.Rev. at 1173.8 See inter alia: United States v. Flannery, 451 F.2d 880 (1st Cir. 1971); Meyers v. United States, 446 F.2d 37 (2nd Cir. 1971); United States v. Bailey, 468 F.2d 652 (5th Cir. 1972); United States v. Harris, 391 F.2d 348 (6th Cir. 1968); Sullivan ......
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