Mugavero v. Swope
| Decision Date | 23 September 1949 |
| Docket Number | No. 29017-E.,29017-E. |
| Parties | MUGAVERO v. SWOPE. |
| Court | U.S. District Court — Northern District of California |
John Mugavero, in pro. per.
Frank J. Hennessy, United States Attorney, Joseph Karesh Assistant United States Attorney, San Francisco, Cal., for respondent.
This is a petition for a writ of habeas corpus. An order to show cause was issued, whereupon respondent replied with a motion to dismiss the petition on the following grounds:
1. That petitioner has not filed a motion in the trial court to vacate the sentence imposed as per 28 U.S.C.A. § 2255:
2. That the petition fails to state a cause of action upon which relief can be granted.
(1) Necessity for Motion to Trial Court.
Section 2255 of Title 28 does require such motion to the trial court before a habeas corpus petition will be heard, with the following exception, which is the last clause of section 2255: "* * * unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." Therefore the question is whether such remedy would be adequate or effective in the instant case.
Petitioner alleges correctly that his co-defendant filed such a petition in the trial court predicated upon the same grounds advanced herein by petitioner. This motion was denied by the trial court, upheld by the Circuit Court of the 2nd Circuit in the case of Oddo v. United States, 171 F. 2d 854, a decision which, as will be pointed out below, seems contrary to the decisions of the 9th Circuit on the point. Thus, it seems logical to conclude that a motion by petitioner to the trial court would be ineffective.
The applicability of this last clause of Section 2255 has apparently risen in only two cases. In St. Clair v. Hiatt, D.C. 83 F.Supp. 585, petitioner had not complied with the requirement of motion to the trial court prior to bringing of the writ of habeas corpus. However, prior to the effective date of the statute, the petitioner had carried on correspondence with the trial judge, which the latter declared he would treat as a motion to correct the sentences. No appeal was taken from the decision of the trial judge not to correct said sentences. Nevertheless the Court hearing the habeas corpus petition held that there was sufficient compliance with Section 2255.
The most analogous case to the present one is Stidham v. Swope, 82 F.Supp. 931, in which Judge Denman of the Ninth Circuit Court of Appeals granted the petition for the writ despite the failure of the petitioner to move the trial court to vacate the sentence, holding that such a motion was inadequate and ineffective to test the legality of petitioner's detention. He based this holding on the fact that the petitioner in Alcatraz was 1500 miles from the sentencing court, with the attendant expense, time and trouble involved in the motion and the consequent appeal, whether or not the petitioner was personally removed back to the locale of the sentencing court, and on the fact that the case could be much more summarily disposed of in San Francisco, since the Warden at Alcatraz was easily available. Judge Denman was undoubtedly influenced by the fact the petitioner in that case apparently had valid grounds for asking for release. With that factor in mind it is probably correct to state that the question of whether a motion to the sentencing court would be effective or not depends to a large extent upon our conclusions as to the substantive merits of the petitioner's case.
(2) Substantive Basis for Petition.
Unfortunately, in his petition for dismissal, respondent has chosen to rest his case primarily on the issue of the necessity of motion to the sentencing court, and discusses the substantive issue only to the point of citing United States v. De Normand, 2 Cir., 149 F.2d 622, which was the original appeal by petitioner from his judgment of conviction. This, however, does not meet the main objection of petitioner, which is that the decisions of the 9th Circuit are contrary to those of the 2nd Circuit, which decided the De Normand case, and also the case of Oddo v. United States, 171 F.2d 854, brought by petitioner's codefendents, where the exact point under consideration here was decided adversely to the petitioner.
The facts underlying this petition are somewhat as follows.
Petitioner was indicted and convicted on nine separate counts. Count 1 charged the theft from "certain trailer trucks" of an interstate shipment of freight consisting of 1005 cases of whiskey. At the trial it was proven that 590 of such cases were in one truck, called truck #3, and 415 in another...
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