Quinn v. United States, 74-1118.
Decision Date | 09 July 1974 |
Docket Number | No. 74-1118.,74-1118. |
Citation | 499 F.2d 794 |
Parties | Charles Jason QUINN, Appellant, v. UNITED STATES of America, Appellees. |
Court | U.S. Court of Appeals — Eighth Circuit |
Charles Jason Quinn, filed typewritten brief pro se.
William F. Clayton, U.S. Atty., and David R. Gienapp and Edward Carpenter, Asst. U.S. Attys., Sioux Falls, S. D., for appellees.
Before LAY, HEANEY and ROSS, Circuit Judges.
This is an appeal from the district court's order denying Charles Jason Quinn's 28 U.S.C. § 2255 motion to vacate his sentence imposed for violation of 18 U.S.C. § 1153 and § 661. That conviction was affirmed by this Court on appeal in United States v. Quinn, 467 F.2d 624 (8th Cir. 1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1390, 35 L.Ed.2d 599 (1973). Quinn's post conviction attack on his sentence relates solely to the second count of the indictment which charged him with unlawfully taking and carrying away, with intent to steal or purloin, the personal property of another of the value of more than $100, in violation of 18 U.S.C. § 1153 and § 661. Quinn asserts in his § 2255 motion that he was deprived of an instruction for a lesser included offense contrary to the dictates of Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). Although the events occurred and the conviction was rendered prior to the date of the Keeble decision, Quinn asserts that Keeble should be applied retroactively and that, because he received no lesser included offense instruction, his sentence should be vacated. We have already determined that the principle announced in the Keeble decision would not receive full retroactive effect in this circuit. United States v. Grant, 489 F.2d 27, 33 (8th Cir. 1973). However, we affirm the district court order denying Quinn's § 2255 motion for another reason.
Jackson v. United States, 495 F.2d 349 (8th Cir. 1974). Collateral attacks, of course, are authorized where a jurisdictional or constitutional error is of the magnitude that there has been a denial of a fair trial. Hill v. United States, supra, 368 U.S. at 428, 82 S.Ct. 468; Franano v. United States, 303 F.2d 470, 472 (8th Cir.), cert. denied, 371 U.S. 865, 83 S.Ct. 125, 9 L.Ed.2d 102 (1962); 2 C. Wright, Federal Practice and Procedure § 593 at 591 (1969). The claimed error need not have its source in the Constitution, but a collateral attack may be maintained if the prisoner is in custody in violation of the laws of the United States. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). The appropriate inquiry is whether the claimed error was a "fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, supra, 368 U.S. at 428, 82 S.Ct. at 471. Under these standards, Quinn is not entitled to relief.
Quinn was tried in federal court under the jurisdictional grant of the Major Crimes Act, 18 U.S.C. § 3242. The penalty provisions for the Major Crimes Act are set forth in 18 U.S.C. § 1153. It provides, in part:
Taking property valued at less than $100 is therefore within the definition of the substantive crime of larceny; it is a crime in the exclusive jurisdiction of the United States; and it is a crime cognizable under 18 U.S.C. § 1153 when committed by an Indian in Indian country. This then is not a case to which Keeble is applicable where "an Indian prosecuted under the Act . . . sought a jury instruction on a lesser included offense where that lesser offense was not one of the crimes enumerated in the Act." Keeble v. United States, supra, 412 U.S. at 206, 93 S.Ct. at 1994. The substantive offense here was enumerated in the Act by virtue of the incorporated definition of 18 U.S.C. § 661. Quinn was at all times entitled to the lesser offense instruction for a violation of that section. See Larson v. United States, 296 F.2d 80 (10th Cir. 1961).
To entitle a defendant to a lesser included offense instruction, however, a proper request must be made. United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974). Here, the defense counsel did not object to the court's proposed...
To continue reading
Request your trial-
U.S. v. Maloney
...government). However, there is a line of cases which specifically holds that larceny is defined by 18 U.S.C. § 661. Quinn v. United States, 499 F.2d 794, 796 (8th Cir. 1974) ("Larceny is one such offense and it is defined by 18 U.S.C. § 661 . . . ."); England v. United States, 174 F.2d 466,......
-
Kelton v. United States, Civ. A. No. 74CV229-W-3.
...626, 7 L.Ed.2d 537 (1962); Lewis v. United States, Civil Action No. 74CV744-W-3 (W.D.Mo. December 23, 1974); see also, Quinn v. United States, 499 F.2d 794 (8th Cir. 1974).1 Even assuming that movant's second ground for relief is cognizable under Section 2255, and is factually meritorious, ......
-
McMillian v. United States
...526 F.2d 1388 (9th Cir. 1975); United States v. Kelton, supra; Egger v. United States, 509 F.2d 745 (9th Cir. 1975); Quinn v. United States, 499 F.2d 794 (8th Cir. 1974); Lorraine v. United States, 444 F.2d 1 (10th Cir. 1971). See also, Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L......
-
U.S. v. Cobb
...v. Brischetto, 538 F.2d 208, 209 (8th Cir. 1976); United States v. Klugman, 506 F.2d 1378, 1380 (8th Cir. 1974); Quinn v. United States, 499 F.2d 794, 796 (8th Cir. 1974); United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974). The District Court on numerous occasions offered to give ......