Nelms v. United States, No. 8805.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 318 F.2d 150
• Parties: Herman Edward NELMS, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 8805.
• Decision Date: 10 May 1963

318 F.2d 150 (1963)

Herman Edward NELMS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 8805.

United States Court of Appeals Fourth Circuit.

Argued January 14, 1963.

Decided May 10, 1963.

318 F.2d 151

Edmund D. Campbell, Arlington, Va. (Court-assigned counsel), for appellant; Herman Edward Nelms, pro se, on brief.

James C. Roberson, Asst. U. S. Atty., for appellee.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and CRAVEN, District Judge.

PER CURIAM.

By the filing of a motion under 28 U. S.C.A. § 2255, which "seems now to have become an almost automatic and continuous prisoner practice, especially as to sentences of more than five years,"¹ the prisoner in this case invoked the jurisdiction of the district court to collaterally attack his sentence. From the denial of his motion he has appealed.

Prisoner Nelms is serving two consecutive five year terms imposed by the United States District Court for the Western District of Virginia on May 12,

318 F.2d 152

1959, for violations of 18 U.S.C.A. § 2421. No appeal was taken from his conviction and sentence. On May 15, 1962, Nelms filed this third petition pursuant to 28 U.S.C.A. § 2255 to vacate the sentence he is serving. For the first time (more than three years after his conviction) he alleges that he was insane before, during and after his trial and sentencing

The United States moved the court to dismiss the petition without a hearing on the grounds that:

(1) The motion, files and records of the case show that prisoner Nelms is entitled to no relief, and

(2) The sentencing court is not required to entertain second or successive motions for similar relief.

On August 30, 1962, the district court, without a hearing, denied Nelms' motion to vacate and filed its opinion. Nelms v. United States, 208 F.Supp. 4, 5 (W.D. Va.1962).

The motions under Section 2255 prior to this one were based upon entirely different grounds, including the following: incompetency of his wife to testify, that he had committed only a single offense instead of two separate offenses for which he was sentenced, improper investigation by probation and parole officers, misuse of presentence report, improper admission in evidence of prisoner's statement to an FBI agent. No mention or intimation of insanity was contained in any of the prior motions. Both previous motions were denied without a hearing.

In his present nineteen page petition the prisoner says that he did not intelligently comprehend the nature and consequences of the judicial proceedings and was unable to assist in his defense because of mental infirmities; that he may have been physically present at his arraignment and trial but that he was mentally absent; that his mental and moral faculties were and are so completely perverted and deranged that he was and is incapable of competently and intelligently distinguishing between right and wrong; that he does not know or remember whether or not he violated any laws or perpetrated any crimes, nor whether he was actually in the courtroom on May 12, 1959.

The prisoner attached to his petition what purports to be a copy of his Army discharge record. This record indicates that some twelve years before the date of his trial the prisoner may have suffered from the following: "`Old' neurosyphilis, psychosis, w/syphiletic meningo-encephalitis (gen. Paresis), manifested by euphoria, expansiveness, memory defect."

At the time of sentencing the prisoner was represented by counsel. In the course of pleading for his client, counsel said to the court: "I would like for you to consider the advisability of sending this man to some place where he may get some mental treatment or psychiatric treatment if Your Honor feels that that would be proper in this case. In my brief contact with him, I believe it would be proper, Sir." Thereafter, the prisoner himself addressed the court asking for leniency with regard to punishment, and his statement was coherent and intelligible.

The district court did not consider the motion on its merits, nor did it dismiss prisoner's petition under either of the grounds urged by the Government. Instead, the district judge came to the conclusion, as reported in Nelms v. United States, supra, that it was not necessary to decide the instant case upon either of the points raised by the United States because Cason v. United States, 220 F.2d 510 (4th Cir. 1955), was controlling. In Cason this court held that where counsel had been duly assigned prisoner and where no question was raised at the trial as to prisoner's sanity, the prisoner is not entitled to relief under Section 2255. This was a per curiam opinion written without citation of authority.

It was in effect overruled by Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), reversing per curiam 96 U.S.App.D.C. 117, 223 F.2d

318 F.2d 153

582 (D.C.Cir.1955), in which the Supreme Court held Section 2255 to be an appropriate procedural vehicle for attacking a federal conviction on the ground of the defendant's insanity at the time of the trial. This court has since cited Bishop as controlling authority in Pledger v. United States, 272 F.2d 69, 70 (4th Cir. 1959), and has held that "it is established law in this Circuit that the mental competency of the accused to enter an intelligent plea of guilty is available as a ground of collateral attack on a Federal conviction." United States v. McNicholas, 298 F.2d 914 (4th Cir. 1962). This decision is in clear conformity with the decisions of other circuits.²

Although relying upon Cason v. United States, supra, as authority for dismissal, the district judge in his opinion pointed to 18 U.S.C.A. § 4245 as a more appropriate avenue of relief for the prisoner. We agree with the district court that an action such as this could most appropriately be initiated by the Director of the Bureau of Prisons under the provisions of 18 U.S.C.A. § 4245. However, in this case the statutory procedure envisioned is not available because the prerequisite certificate of probable cause has not been forthcoming. But a...