Sepulveda v. United States, 232-68.

• Decision Date: 11 August 1969
• Docket Number: No. 232-68.,232-68.
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Frank Edward SEPULVEDA, Appellant, v. UNITED STATES of America, Appellee.

415 F.2d 321 (1969)

Frank Edward SEPULVEDA, Appellant, v. UNITED STATES of America, Appellee.

No. 232-68.

United States Court of Appeals Tenth Circuit.

August 11, 1969.

Rollie R. Rogers, Denver, Colo. (Harry L. Hellerstein, Aurora, Colo., with him on the brief), for appellant.

James R. Richards, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellee.

Before MURRAH, Chief Judge, PHILLIPS and SETH, Circuit Judges.

PER CURIAM.

The petitioner sought post-conviction relief by a petition for a writ of coram nobis. He was originally convicted in 1954 for illegal possession of marijuana under 26 U.S.C. § 2593(a), now 26 U.S. C. § 4744(a). The appellant entered a not guilty plea to the charge, and at the trial he testified on his own behalf. He was convicted and served the sentence. In 1960 he was charged with the offense of importing marijuana, concealing and transporting it, and failing to pay the tax. At the trial, he testified on his own behalf and denied guilt. He was found guilty and was sentenced for twenty years under the multiple offense provisions of 26 U.S.C. § 7237(a) and is now serving this sentence.

His petition for a writ of coram nobis was denied by the trial court, and he has taken this appeal. Appellant relies on Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906; Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L. Ed.2d 923; Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 and United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94.

The record shows that appellant in no way sought to raise the issue of privilege against self-incrimination at his trials as was done in United States v. Freeman, 412 F.2d 1180 (10th Circuit, June 20, 1969). Can he now in this post-conviction petition raise the issue effectively under Covington, Leary, and their predecessors?

We must hold that he cannot do so, for the reason that the claim of privilege was not timely made. The Court in Covington said that the privilege is a bar if not waived and is timely made. The Court found that the claim was properly made in Leary, at a motion for new trial, and in Covington, on a motion to dismiss the indictment. In Covington there could seem to be no serious issue of timeliness in view of the time when the claim was asserted, but the Court nevertheless stated the requirement of timeliness and recited that it had been there met. Thus it must be considered of primary significance. We must hold that the assertion of the claim for the first time during the course of this post-conviction relief is not timely as required by Covington.

In our consideration of the timeliness issue we have given careful consideration to the several cases from other courts which reach a different result. These include: Shoffeitt v. United States, 403 F.2d 991 (5th Cir.); United States v. Miller, 406 F.2d 1100 (4th Cir.), and Drennon v. United States, 393 F. 2d 342 (8th Cir.). In these cases, and specifically in Shoffeitt, complete reliance is placed upon the proposition that ...