Robinson v. United States, Civ. A. No. 5534.

CourtUnited States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
Writing for the CourtJAMES F. GORDON
Citation264 F. Supp. 146
PartiesThomas Henry ROBINSON, Jr., Petitioner, v. UNITED STATES of America, Respondent.
Docket NumberCiv. A. No. 5534.
Decision Date23 February 1967

264 F. Supp. 146

Thomas Henry ROBINSON, Jr., Petitioner,
v.
UNITED STATES of America, Respondent.

Civ. A. No. 5534.

United States District Court W. D. Kentucky, at Louisville.

February 23, 1967.


264 F. Supp. 147
COPYRIGHT MATERIAL OMITTED
264 F. Supp. 148
Thomas Henry Robinson, Jr., pro se

Ernest W. Rivers, U. S. Atty., Edwin R. Render, Asst. U. S. Atty., Louisville, Ky., for respondent.

MEMORANDUM OPINION AND ORDER

JAMES F. GORDON, District Judge.

Petitioner, a federal prisoner, has filed with this Court a motion, pursuant to Title 28 U.S.C. § 2255, to vacate a judgment of conviction and sentence, together with a motion for leave to proceed in forma pauperis, and a motion for the appointment of counsel, hearing, etc.

The record discloses that, on October 20, 1934, the petitioner was indicted by the Grand Jury of this Court on two counts of the offenses of kidnaping and conspiracy to kidnap under Sections 1201 (a) and 1201(c) of Title 18 U.S.C. (Sections 408a and 408c of Title 18 U.S.C. at the time the indictment was returned). Petitioner was apprehended on May 11, 1936 and upon his arraignment on May 13, 1936, he entered a plea of guilty on the one count of kidnaping1 and received a sentence of life imprisonment imposed by the Court. Incarceration at Alcatraz followed.

Subsequently, on August 9, 1943, the judgment and sentence of May 13, 1936 was pronounced void by Judge Michael J. Roche in his opinion growing out of a habeas corpus proceeding in the United States District Court, Northern District of California, Southern Division. Robinson v. Johnston (D.C., 1943), 50 F.Supp. 774.2

Following the ruling of the California District Court, petitioner was returned by the authorities to the United States District Court, Western District of Kentucky, wherein he entered a plea of not guilty to the kidnaping count of the original indictment of October 20, 1934, and was retried in this Court in late 1943, the jury returning a verdict of guilty and recommending that the prisoner be sentenced to death, which sentence the Court imposed.

Petitioner Robinson then perfected timely appeal to the Court of Appeals and the judgment was there affirmed. Robinson v. United States (C.A.6), (1944), 144 F.2d 392.3 Petition was then made by Robinson to the United States Supreme Court for a writ of certiorari which was granted and, subsequently, that Court affirmed the conviction. See Robinson v. United States (1945), 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944.

264 F. Supp. 149

On June 6, 1945, President Truman commuted the sentence of death to life imprisonment.

Thereafter, during prisoner's incarceration, he has unsuccessfully, but nevertheless steadfastly, continued litigious proceedings to escape his penalty; such as, Robinson v. Swope, 96 F.Supp. 98 (D.C., 1951); Robinson v. Swope (C.A. 9), 197 F.2d 633 (1952); Robinson v. Swope, cert. denied, 344 U.S. 867, 73 S. Ct. 109, 97 L.Ed. 673 (1952). In these last abovementioned efforts, petitioner sought habeas corpus relief alleging 28 U.S.C. § 2255 to be ineffectual and unconstitutional.

Finally, on September 28, 1953, petitioner filed in this Court a motion under Title 28 U.S.C. § 2255. At the hearing, defendant and his counsel stated that no testimony was to be introduced and he was returned to the United States Penitentiary at Atlanta, Georgia. In a lengthy and thorough opinion by my distinguished and learned colleague, Judge Roy M. Shelbourne, the motion was denied. United States v. Robinson (D.C., 1956), 143 F.Supp. 286, 287. Petitioner again applied to the Supreme Court for relief. Cert. denied, 356 U.S. 970, 78 S. Ct. 1140, 2 L.Ed.2d 1146 (1957).

Petitioner Robinson's incarceration has been interrupted twice by escapes. While a fugitive in 1965, he was apprehended, convicted and sentenced to 14 years for attempted bank robbery in Nashville, Tennessee, and subsequently, for the escape, was sentenced in the United States District Court in Atlanta, Georgia to an additional term of 5 years, these latter two sentences each being designated to run concurrently with the life sentence.

So much for the judicial background.

As to the instant motion, the petitioner sets forth what we classify as three categories of alleged grounds for relief. The first category, hereinafter designated by us as "A", constitutes a reiteration of the many grounds set forth by petitioner for relief in the § 2255 motion of 1956, before Judge Shelbourne, now desired to be re-examined by us in the light of subsequent judicial pronouncements; secondly, that category designated by us as "B", alleged by petitioner to be asserted for the first time in this motion; and thirdly, that category designated by us as "C", raised by the petitioner in pleadings supplemental to the instant proceeding.

In view of the fact that the alleged grounds for relief in category "A" were heretofore the subject of a hearing at which petitioner had counsel and offered no proof; and that the grounds alleged by the petitioner in categories "B" and "C" raise only legal issues presenting no factual issues for determination, a hearing is not necessary. This Court sees no need for the appointment of counsel as the petitioner is one trained in the law, his pleadings clearly express his contentions and are well punctuated by citations. Accordingly, upon the entire record, we shall proceed with disposition of this motion to vacate.

CATEGORY "A"

The 1953 Motion 2255

Trial courts are not required to entertain second or successive motions to vacate upon the same or identical grounds. Dunn v. United States (C.A.6), 234 F.2d 219, cert. denied 352 U.S. 899, 77 S.Ct. 140, 1 L.Ed.2d 90; Malone v. United States (C.A.6), 299 F.2d 254, cert. denied 371 U.S. 863, 83 S.Ct. 122, 9 L.Ed. 2d 100; Williams v. United States (C.A. 5), 309 F.2d 890, cert. denied 373 U.S. 940, 83 S.Ct. 1545, 10 L.Ed.2d 694. We do however, to the "ends of justice", consider these matters again.

This Court has examined Judge Shelbourne's opinion, appearing in 143 F. Supp. 286, 287, and finds no fault with his disposition of the grounds set forth in the § 2255 motion of 1953, nor does the Court consider that any changes in the law have occurred subsequent to his opinion, which affect the present soundness of his rulings on the matters there in issue.

CATEGORY "B"

Three New Grounds

These allegations petitioner claims to be asserted here "for the first time", although

264 F. Supp. 150
it appears that they have been, to some degree at least,4 heretofore dealt with either on the direct appeal to the Sixth Circuit in 1944, and to the Supreme Court, or in the § 2255 proceeding of 1953. We will, however, in the interest of justice, treat them as new assertions

I. Petitioner claims that his second trial and conviction, and the resultant jury verdict of death, after successful reversal of his first conviction on plea of guilty, punishment then having been fixed at a life sentence, placed him in double jeopardy. He legally rests this assertion upon the ground that such occurrences bring him within the scope of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). May it be made clear that initially the issue of double jeopardy was raised by the petitioner on direct appeal to the Sixth Circuit in 1944, at which time it was refused, the Court there declaring in 144 F.2d 392, at page 397:

"Appellant complains that he has been placed in double jeopardy, in contravention of the Fifth Amendment. This contention cannot be sustained for
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6 practice notes
  • Coleman v. State, No. 81-115
    • United States
    • Montana United States State Supreme Court of Montana
    • September 28, 1981
    ...court may, of course, conclude that the changes in the law are inapplicable to petitioner's case. Robinson v. United States (D.Ky.1967), 264 F.Supp. 146, aff'd, (6th Cir. 1968), 394 F.2d 823, cert. denied, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 698, reh. denied, 393 U.S. 1124, 89 S.Ct. 997......
  • United States v. Jackson, No. 85
    • United States
    • United States Supreme Court
    • April 8, 1968
    ...the court has accepted a guilty plea. Seadlund v. United States, 7 Cir., 97 F.2d 742, 748. Accord, Robinson v. United States, D.C., 264 F.Supp. 146, 153. But the statute does not say 'a jury.' It says 'the jury.' At least when the defendant demands trial by jury on the issue of guilt, the G......
  • Spillers v. State, No. 5250
    • United States
    • Nevada Supreme Court of Nevada
    • January 4, 1968
    ...court must consent because the state too has a right to have the issue decided by a jury. NRS 174.480. 1 In Robinson v. United States, 264 F.Supp. 146 (W.D.Ky.1967), the federal kidnapping statute (18 U.S.C.A., § 1201(a)) was upheld on a Sixth Amendment attack against it, and specifically d......
  • McFarland v. United States, Civ. No. 18054.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 7, 1968
    ...followed the procedure approved in Seadlund v. United States, 97 F.2d 742, 748 (7 Cir. 1938). See also Robinson v. United States, 264 F.Supp. 146, 153 (W.D.Ky.1967). He not only made sure that the several defendants were entering the pleas voluntarily and with knowledge of the possible cons......
  • Request a trial to view additional results
6 cases
  • Coleman v. State, No. 81-115
    • United States
    • Montana United States State Supreme Court of Montana
    • September 28, 1981
    ...court may, of course, conclude that the changes in the law are inapplicable to petitioner's case. Robinson v. United States (D.Ky.1967), 264 F.Supp. 146, aff'd, (6th Cir. 1968), 394 F.2d 823, cert. denied, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 698, reh. denied, 393 U.S. 1124, 89 S.Ct. 997......
  • United States v. Jackson, No. 85
    • United States
    • United States Supreme Court
    • April 8, 1968
    ...the court has accepted a guilty plea. Seadlund v. United States, 7 Cir., 97 F.2d 742, 748. Accord, Robinson v. United States, D.C., 264 F.Supp. 146, 153. But the statute does not say 'a jury.' It says 'the jury.' At least when the defendant demands trial by jury on the issue of guilt, the G......
  • Spillers v. State, No. 5250
    • United States
    • Nevada Supreme Court of Nevada
    • January 4, 1968
    ...court must consent because the state too has a right to have the issue decided by a jury. NRS 174.480. 1 In Robinson v. United States, 264 F.Supp. 146 (W.D.Ky.1967), the federal kidnapping statute (18 U.S.C.A., § 1201(a)) was upheld on a Sixth Amendment attack against it, and specifically d......
  • McFarland v. United States, Civ. No. 18054.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 7, 1968
    ...followed the procedure approved in Seadlund v. United States, 97 F.2d 742, 748 (7 Cir. 1938). See also Robinson v. United States, 264 F.Supp. 146, 153 (W.D.Ky.1967). He not only made sure that the several defendants were entering the pleas voluntarily and with knowledge of the possible cons......
  • Request a trial to view additional results

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