Robinson v. United States

Decision Date23 February 1967
Docket NumberCiv. A. No. 5534.
Citation264 F. Supp. 146
PartiesThomas Henry ROBINSON, Jr., Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — Western District of Kentucky

COPYRIGHT MATERIAL OMITTED

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.

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 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 two reasons: (1) Because, as hereinabove indicated, it has been judicially determined that the original judgment and sentence by the Kentucky District Court were not a judgment and sentence at all; and (2) because the original judgment and sentence having been declared void at his insistence, appellant may not later introduce it as a hindrance to the further administration of justice."

Further, on direct appeal, the Supreme Court had opportunity in its granting certiorari to have corrected this holding if it considered such in error.

However, petitioner now claims that the Supreme Court holding in Green, supra, casts a different light upon the law of double jeopardy and that his situation falls within the scope thereof, as the penalty death later commuted to life upon the second trial exceeded the penalty of the first conviction, i. e., life sentence. We cannot accept this view, for petitioner's complaint of double jeopardy thus is one directed at the penalty imposed for the offense and not at the offense itself. 18 U.S.C., Section 1201(a), creates a single offense of transporting a kidnaped victim across state lines which may or may not be punished by death. Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041. This singleness of offense alone distinguishes the petitioner's present claim from situations embraced within Green v. United States, 355 U.S. 184, 78 S.Ct. 221. The Supreme Court, in Green, supra, was dealing with different offenses, not different penalties growing out of the same offense. Likewise, in Green, supra, there had been a silence of the jury as to one offense, interpreted by the Court to be an acquittal. In the instant matter, the petitioner was never acquitted of the offense of kidnaping. He, in fact, originally pled guilty. The prohibition of double jeopardy in the Constitution is not against being twice punished for the same offense, but against being twice placed in jeopardy for the same offense. United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300. The Fifth Amendment's provision preventing a person from being subject to double jeopardy is one that does not preclude the government's retrying a defendant, whose conviction is set aside at his own insistence because of error in the proceedings, for the same offense. Such is a well established part of our constitutional jurisprudence. See Green v. United States itself, supra, 355 U.S. at page 189, 78 S.Ct. 221, and United States v. Tateo, 377 U.S. 463, and cases cited therein, page 465, 84...

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  • Coleman v. State, 81-115
    • United States
    • Montana Supreme Court
    • September 28, 1981
    ...are involved. A 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. 11......
  • United States v. Jackson
    • United States
    • U.S. Supreme Court
    • April 8, 1968
    ...that purpose after 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 is......
  • Spillers v. State
    • United States
    • Nevada Supreme Court
    • January 4, 1968
    ...and the 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 specif......
  • McFarland v. United States, Civ. No. 18054.
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    • U.S. District Court — District of 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......
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