Quinn v. United States, 74-1118.

• Decision Date: 09 July 1974
• Docket Number: No. 74-1118.,74-1118.
• Parties: Charles Jason QUINN, Appellant, v. UNITED STATES of America, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

499 F.2d 794 (1974)

Charles Jason QUINN, Appellant, v. UNITED STATES of America, Appellees.

No. 74-1118.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 1974.

Decided July 9, 1974.

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.

PER CURIAM.

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.

We have recently reiterated that

the Supreme Court has recognized four grounds properly within the scope of a motion under 28 U.S.C. § 2255:

(1) "that the sentence was imposed in violation of the Constitution or laws of the United States," (2) "that the court was without jurisdiction to impose such sentence," (3) "that the sentence was in excess of the maximum authorized by law," and (4) "that the sentence is otherwise subject to collateral attack."

Hill v. United States, 368 U.S. 424, 426-427 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). The writ is not designed for collateral review of errors of law committed by the trial court such as . . . errors in trial procedure which do not cross the jurisdictional line. Sunal v. Large, 332 U.S. 174, 179 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). . . . However, constitutional defects in the process are cognizable under a § 2255 motion. Kaufman v. United States, 394 U.S. 217, 222 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). Accordingly, . . . only where a sentence is void or otherwise subject to collateral attack does § 2255 afford a remedy. . . .

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:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

Id. Of the above enumerated offenses, some are defined,¹ others defined and punished,² in accordance with the laws of the State in which the offense was committed. The remaining enumerated offenses are subject to the same laws and penalties as all other persons committing any of the offenses within the exclusive jurisdiction of the United States. Larceny is one such offense and it is defined by 18 U.S.C. § 661 as follows:

Whoever, within the special maritime and territorial jurisdiction of the United States, takes and carries away, with intent to steal or purloin, any personal property of another shall be punished as follows:

If the property taken is of a value exceeding $100, or is taken from the person of another, by a fine of not more than $5,000, or imprisonment for not more than five years, or both; in all other cases, by a fine of not more than $1,000 or by imprisonment not more than one year, or both.

* * * * * *

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...