Smith v. Harris

• Decision Date: 20 January 1965
• Docket Number: Civ. A. No. 14270-4.
• Citation: 237 F. Supp. 665
• Parties: Joseph Orby SMITH, Petitioner, v. Dr. Jesse D. HARRIS, Warden, Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

237 F. Supp. 665

Joseph Orby SMITH, Petitioner, v. Dr. Jesse D. HARRIS, Warden, Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

Civ. A. No. 14270-4.

United States District Court W. D. Missouri, W. D.

December 31, 1964.

As Amended January 20, 1965.

O. J. Taylor, of Neale, Newman, Bradshaw, Freeman & Neale, Springfield, Mo., Charles Hamel, Los Angeles, Cal., for petitioner.

John Harry Wiggins, Asst. U. S. Atty., Kansas City, Mo., for respondent.

BECKER, District Judge.

This is the latest memorandum opinion and order upon an apparently innumerable and unending series of harassing and sometimes irrational post conviction proceedings by petitioner. See a partial history of these in Smith v. Settle (W.D.Mo.) 212 F.Supp. 622. When asked at an evidentiary hearing how many prior proceedings this opinion omitted petitioner replied. "Oh, a garbage bucketful. I'm telling you." (Tr. 107. See also Smith v. Settle (W.D. Mo.) 211 F.Supp. 514, which resulted in dismissal of the charge against petitioner of mailing a threatening letter. At the evidentiary hearing, petitioner produced a memorandum, dated January 19, 1961, (P. Ex. 2) purporting to be a summary of prior proceedings in the District Court, Southern District of California, Central Division, which supplements the history of these proceedings. A copy thereof is filed in this cause.

Numerous collateral complaints and petitions seeking relief have been filed by petitioner. See e. g., Smith v. Becker, District Judge (C.A.8) Misc. Nos. 180, 275 and 312.

Despite the sometimes irrational and unusually harassing nature of petitioner's complaints, an earnest effort has been made to analyze and process all of petitioner's pending and potential complaints in accordance with the suggestions of Judge James M. Carter in connection with Cortez v. United States, D.C., 32 F.R.D. 391, affirmed (C.A.9) 337 F.2d 699, which suggestions were later repeated in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148.

In the processing of these complaints the following things, among others, have been done. (1) Extensive research into the history of this case has been conducted; (2) an attorney, one of the most experienced and skilled in criminal law of the Springfield, Missouri, Bar, former assistant United States Attorney, O. J. Taylor, Esquire, has been appointed as counsel for petitioner; (3) all motions, letters, petitions and complaints of petitioner have been assembled, consolidated and analyzed; (4) an order to show cause why his petitions and motions should not be granted has been issued; (5) at the request of this Court, counsel to assist petitioner in California, Charles Hamel, Esquire, of Los Angeles, has been appointed by the Chief Judge of the Southern District of California; (6) after inquiry into the then current competency of the petitioner to testify and assist counsel, an evidentiary hearing was commenced; (7) prior to this hearing the Cortez procedure was employed under the direction of the Court to draw out all pending and potential litigable issues, and to define the legal issues (Tr. 3, 4); (8) a supplemental order to show cause was issued prior to beginning the hearing to include additional complaints, made by petitioner without advice or assistance of counsel; (9) an order was issued for a hearing on petitioner's complaints including those which his counsel did not consider relevant (Tr. 4), which order is in the record (Tr. 4-7), and attached hereto in the appendix; (10) habeas corpus was employed to produce petitioner at the hearing; (11) petitioner testified fully at the hearing; (12) the hearing was not concluded because of the request of petitioner for the production of copies of the confession of Scott and of reports of the agents of the Federal Bureau of Investigation concerning the veracity and authenticity of the confession of Scott; (13) an order for production of these documents was entered, directing that petitioner's counsel "be allowed to inspect, copy or reproduce said documents and records as he may desire;" (14) these documents were produced by respondent and inspected by petitioner's counsel; (15) meanwhile the petitioner ignored his counsel, attempted to discharge him, made unfounded malicious charges against his counsel, the Court, and others as shown by the file in this and other cases mentioned above; (16) an order was issued finding petitioner's representation to be adequate and directing that no further correspondence concerning this action from petitioner to this Court be forwarded without approval of his counsel.

Since that time petitioner's total lack of cooperation and interference with his counsel's efforts in his behalf have made it impossible for his counsel to continue to represent him.

From personal observation and from the record in this case, it is found that while petitioner has short periods of remission, he lacks the mental competency to properly understand the proceedings involving his post conviction complaints and lacks the mental competency to assist in the presentation of those complaints. His personal conduct in these proceedings would constitute an abuse of legal remedies justifying a denial of his requests for relief, in the absence of this mental incompetency.

Since it is now established by Sanders v. United States, supra, that there is no finality to an adverse ruling on a motion to vacate under Section 2255, petitioner has complaints based on the alleged Scott confession, the alleged suppression thereof, the alleged causing of the execution of Scott and the alleged inadequate representation by Court appointed counsel in 1960 (Mr. Harpole), which have never been adjudicated upon evidentiary hearing by the committing Court, if in fact ever presented to that Court. There is nothing to indicate that there has been any neglect or disregard of petitioner's rights by that Court, or that the law as declared in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 will not be applied by the committing Court. Therefore these complaints should be submitted to the committing Court before being made the subject of a petition for habeas corpus in this Court. Seelig v. United States (C.A. 8) 310 F.2d 243. If the decision there is adverse to petitioner the remedy is by appeal from that decision rather than return to this Court for a petition for writ of habeas corpus.

It is also suggested that in view of petitioner's mental condition, consideration be given to appointing a next friend or a guardian ad litem to prosecute his motion under Section 2255, a procedure which has been successfully employed in this district to enable the Courts to process a post conviction complaint of one who is incompetent.

Petitioner asserts that he is not psychotic. Whether he is psychotic or not, it is now evident that he lacks the mental competency to assist counsel in presenting a post conviction complaint, and the mental competency consistently to understand the nature of the proceedings in his behalf. To illuminate the problem, a copy of a letter of the respondent dated June 26, 1964, is quoted here.

"June 26, 1964 "Hon. William H. Becker U. S. District Judge Western District of Missouri Kansas City, Missouri — 64106 "Re: Joseph Orby Smith Reg. No. 11069-H Civil Action #14270-4

"My dear Judge Becker:

"In response to your letter of June 22, 1964, I have discussed the current status of the above-named individual with his ward psychiatrist and the Chief of the Psychiatric Service. I am advised by them that he has continued with the progress noted previously. He does not have, at this time, any evidence of hallucinations or delusions nor is there any evidence of psychosis although he obviously continues to show some evidence of his schizophrenic process. He continues to be alert, oriented and has goal directed thoughts. His speech is coherent, and the content is relevant to his situation. He is currently living on one of our most open psychiatric wards and is earning from average to above average work reports working in the inmate library.

"I would like to quote for you from a summary by his Psychiatric Caseworker which was part of an Annual Parole Review for January of this year. `In summary, this patient continues evidence of mental illness although it is the Psychiatric opinion that he is not currently psychotic. Many of his reactions and beliefs are detrimental to him, e. g., he has low toleration to stress, a tendency towards use of poor judgment, and difficulty in following suggestions and advice from personnel and his Attorney. When confronted with the reality that many of

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