Simmons v. United States, 15867.

• Decision Date: 18 April 1958
• Docket Number: No. 15867.,15867.
• Citation: 253 F.2d 909
• Parties: D. A. SIMMONS, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

253 F.2d 909 (1958)

D. A. SIMMONS, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 15867.

United States Court of Appeals Eighth Circuit.

April 18, 1958.

F. Neil Aschemeyer, Clayton, Mo., for appellant.

O. J. Taylor, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal in forma pauperis by D. A. Simmons, Jr., hereinafter called appellant, from order denying his petition for a writ of habeas corpus ad subjiciendum. Appellant was indicted in the federal court for the Western District of Oklahoma on February 16, 1955, on the charge of violating 18 U.S.C.A. § 2312. The indictment charged the crime was committed on December 28, 1954. Appellant, who was represented by counsel, was tried by a jury and found guilty on March 7, 1955, and on March 14, 1955, was sentenced to serve a term of five years. There is nothing in the record to indicate that the question of appellant's mental competency to stand trial was raised at the time of his trial. Appellant is presently serving his sentence at the U. S. Medical Center for Federal Prisoners at Springfield, Missouri.

Appellant has filed a brief and a reply brief pro se. His court-appointed counsel, F. Neil Aschemeyer, has filed a brief and made oral argument on behalf of appellant. We wish to thank Mr. Aschemeyer for accepting this appointment and for his able representation of the appellant before this court. We have given all briefs and arguments full consideration.

The appellant in his brief pro se sets out the issues on this appeal as follows:

1. Did the trial court err in not making a finding on the appellant's mental condition before trial, as is provided in Title 18 U.S.C.A. — Section 4244?

2. May perjured testimony by the complaining witness in a criminal trial be, legally, used to obtain and sustain a conviction?

3. May a trial judge inject his own personal opinion into his charge to the jury, though it be highly prejudicial against this appellant?

4. Did the appellant have the effective assistance of counsel?

Appellant's counsel relies only upon Issue No. 1, above stated, the sanity issue. He states that since appellant has alleged prior adjudication of insanity, a presumption arises that such condition continued through the time of his trial and sentence, and that consequently the judgment and sentence are void and appellant is entitled to discharge on habeas corpus.

We shall first consider Issues Nos. 2, 3, and 4, above stated, raised by the appellant pro se.

The appellant raised substantially these same issues in a motion pursuant to 28 U.S.C.A. § 2255, filed in the Western District of Oklahoma. Such motion was denied. Upon appeal the Tenth Circuit affirmed. Simmons v. United States, 230 F.2d 73. The court there stated the issues as follows (at page 74):

"The grounds of attack upon the judgment and sentence as pleaded in the motion to vacate were that appellant was convicted upon the uncorroborated evidence of a co-defendant; that at the time of the transportation as charged in the indictment the co-defendant had papers of ownership of the automobile which the State of Oklahoma recognized; that appellant believed in good faith that the co-defendant was the owner of the automobile; that at the trial a named person testified that he owned the automobile while official records disclosed that another person was the owner; that the co-defendant received a less sentence than did the appellant; that the imposition of such sentences indicated prejudice on the part of the trial court against appellant; and that appellant did not have effective assistance of counsel in that appellant was without funds with which to appeal the case and the court appointed counsel declined to continue in the case and perfect an appeal. * * *"

The Court of Appeals affirmed the determination of the Oklahoma court that it conclusively appeared from the record that the appellant was entitled to no relief. The petition filed in the Oklahoma court and the proceedings there are not set out in the record. No record of the original trial resulting in appellant's conviction is before us.

It would appear from the quotation from the opinion of the Tenth Circuit that the substance of appellant's complaints involved in Issues Nos. 2, 3, and 4 was considered by the Oklahoma court and found to be without merit. The appellant has failed to point out any valid reason why such asserted errors should now be reexamined. Moreover, if there is anything included in Issues Nos. 2, 3, and 4 which was not raised in the Oklahoma court, we could not consider such issue, as section 2255 requires that the issue first be raised in the sentencing court.

We now pass to the sanity issue.

The trial court held no hearing upon appellant's petition. Under such circumstances it must be assumed upon appeal that the factual allegations of the petition are true. House v. Mayo, 324 U. S. 42, 45, 65 S.Ct. 517, 89 L.Ed. 739. The Government contends that the allegations of the petition are not sufficient to establish that a presumption of insanity existed at the time of the trial. The appellant does assert that he was adjudged insane by a jury in Fort Worth, Texas, on December 17, 1952, and that on December 20, 1952, he was committed to a mental hospital "to receive treatment as a mentally ill person suffering from Schizophrenia," and that on May 31, 1956, he was found by a Federal Board of Examiners to be suffering from the old mental illness, and appellant was transferred to the Medical Center at Springfield, Missouri. Appellant asserts that he was afflicted with mental illness for a long period of time.

This court has held that an adjudication of insanity refutes the presumption of sanity and at least makes out a prima facie case of incompetency. Byrd v. Pescor, 8 Cir., 163 F.2d 775, 778; Ashley v. Pescor, 8 Cir., 147 F.2d 318, 321.

It is true that the appellant did not set out the manner in which he gained his freedom from the mental institution. Obviously, he was not incarcerated at the time the alleged crime was committed.

We are inclined to think that the appellant has adequately pleaded the fact issue that he lacked mental competency at the time of his trial and sentence. Since, as hereinafter pointed out, we believe that the judgment must be affirmed for other reasons, we shall assume, without further discussion, that the appellant has pleaded sufficient facts to raise the issue of his sanity at the time of his trial and sentence.

The Government next contends that the issue of appellant's sanity at the time of trial and sentence must be raised in the sentencing court by a motion under section 2255. We agree. The purpose of section 2255 and its legislative history are fully considered in United States v. Hayman, 342 U.S. 205, 72 S. Ct. 263, 96 L.Ed. 232. The Court there shows that the statute was passed at the instance of the Judicial Conference to meet many practical problems that had arisen in habeas corpus proceedings, and that its purpose was to afford the prisoner the same rights by motion in the sentencing court. In Weber v. Steele, 8 Cir., 185 F.2d 799, 800, this court states:

"The purpose of Section 2255 was to require a federal prisoner to exhaust his remedies in the courts of the District and Circuit in which he was convicted and sentenced, and to apply to the Supreme Court, on certiorari from a denial of such remedies, before seeking release on habeas corpus. This means that he must exhaust all the ordinary remedies available to him before applying for an extraordinary remedy. * * *"

Section 2255 clearly provides that a prisoner is required to exhaust his rights to have a sentence vacated in the sentencing court before habeas corpus is available. Martin v. United States, 8 Cir., 248 F.2d 554, 556.

While appellant has applied for section 2255 relief upon some grounds in the sentencing court, as hereinabove set out, he did not in said proceedings raise the issue of his mental competency at the time of his trial. The right to apply to the sentencing court for relief upon this ground is still open to him. While in oral argument appellant, in an attempt to avoid the restrictions placed upon habeas corpus by section 2255, stated that the motion before the sentencing court would be ineffective, he made no such allegation in his petition.

There is nothing...