Nash v. United States

Decision Date19 March 1965
Docket NumberNo. 21444.,21444.
Citation342 F.2d 366
PartiesCharles Elmer NASH, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Charles Elmer Nash, Texarkana, Tex., for appellant.

Harry Lee Hudspeth, Asst. U. S. Atty., San Antonio, Tex., Ernest Morgan, U. S. Atty., for appellee.

Before GEWIN and BELL, Circuit Judges, and McRAE, District Judge.

GRIFFIN B. BELL, Circuit Judge:

Appellant was convicted on each count of a three count indictment charging, respectively, importation and concealment of heroin in violation of 21 U.S.C.A. § 174, and failure to register and pay the special tax in violation of 26 U.S.C.A. § 4724(c). He was sentenced on November 30, 1961, and no appeal was taken. He then brought the present proceeding under 28 U.S.C.A. § 2255 alleging that he had been subjected to compulsory self-incrimination in violation of the Fifth Amendment when he was forced to take an emetic that caused him to regurgitate heroin which he had previously swallowed, and which was then used as evidence against him. Compare Rochin v. People of California, 1951, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. The District Court ruled against appellant on the merits, finding that there was no compulsory self-incrimination because as a matter of fact the emetic was taken voluntarily after appellant had been advised by a physician of the harm that could result to him.

In appealing from this judgment, appellant attempts to raise in this court the additional contentions that the heroin and an incriminating statement made to a government agent were inadmissible because they were obtained as a result of an illegal arrest and illegal detention, and by reason of an illegal search and seizure. All of these contentions including the self-incrimination question had been previously raised by appellant's counsel at the original trial and were overruled by the trial court.

We affirm the District Court's denial of relief without reaching the merits of any of appellant's contentions, and note that it was unnecessary for the District Court to consider the merits either. This is so because appellant has failed to meet the threshold prerequisite to relief under § 2255 of demonstrating that he has not waived his present contentions by deliberately failing to appeal from his original conviction.1

It has long been the law that habeas corpus and § 2255 will not be allowed to do service as an appeal, and that so far as federal prisoners are concerned, failure to appeal will normally bar resort to post-conviction relief. Sunal v. Large, 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. This rule, however, has never been an inflexible one, and has been relaxed in exceptional circumstances. See Sunal v. Large, supra, authorities cited at notes 6-8. Prior to the decision of the Supreme Court in Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, state prisoners who failed to appeal were similarly barred from collaterally attacking their convictions in the federal courts by the adequate and independent state ground doctrine. E. g., Daniels v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. However, Fay v. Noia held that a state prisoner would be barred only if his failure to appeal constituted a deliberate by-pass of state appellate remedies amounting to a waiver. The court stated:

"Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. * * * We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." (372 U.S. at 438, 83 S.Ct. at 848, 9 L.Ed.2d at 868-869.)

As to what would constitute a deliberate by-pass, the court stated:

"The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 1466, 146 A.L.R. 357`an intentional relinquishment or abandonment of a known right or privilege\' — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly for-went the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits * * *." (372 U.S. at 439, 83 S.Ct. at 849, 9 L.Ed.2d at 869.)

And Johnson v. Zerbst, supra, which involved the denial of right to counsel, makes it plain that the burden of establishing the absence of waiver rests squarely on the prisoner:

"It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carriers with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of Counsel." (304 U.S. at 468-469, 58 S.Ct. at 1025, 82 L.Ed. at 1468-1469.)

Of course, the Supreme Court in Fay v. Noia was dealing with a state prisoner who failed to appeal and who was seeking relief by way of federal habeas corpus, whereas here we are presented with a federal prisoner who failed to appeal and who seeks relief under § 2255.2 However, we see no persuasive reason why collateral attack should be more liberal for the state prisoner than for the federal prisoner. On the contrary, considerations of federalism and the policy against incursion by the federal courts on the sanctity of the judgments of another judicial system are not present in the instant case. Consequently, we hold that Fay v. Noia and Johnson v. Zerbst furnish the controlling...

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    ...68--69; Thornton v. United States, 368 F.2d 822, 825, 829; Campbell v. United States (7 Cir. 1966) 355 F.2d 394, 395; Nash v. United States (5 Cir. 1965) 342 F.2d 366, 368; Vena v. Warden, State Prison (1966) 154 Conn. 363, 225 A.2d 802; Dunek v. District Court of Lee County (Iowa 1966) 140......
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