Smith v. United States, 1310-60.

• Decision Date: 13 April 1961
• Docket Number: No. 1310-60.,1310-60.
• Citation: 216 F. Supp. 809
• Court: U.S. District Court — Southern District of California
• Parties: Joseph Orby SMITH, Petitioner, v. UNITED STATES of America, Respondent.

216 F. Supp. 809

Joseph Orby SMITH, Petitioner, v. UNITED STATES of America, Respondent.

No. 1310-60.

United States District Court S. D. California, Central Division.

April 13, 1961.

Laughlin E. Waters, U. S. Atty., and Thomas R. Sherican, Asst. U. S. Atty., Chief of Criminal Division, and Timothy M. Thornton, Asst. U. S. Atty., Los Angeles, Cal., for the United States.

Paul Augustine, Jr., Alhambra, Cal., for petitioner.

HALL, Chief Judge.

The matter is before the Court on a Motion filed November 18, 1960, under 28 U.S.C. § 2255 to vacate judgment of conviction and set aside the sentence in case No. 19,993-CR. D.C., 174 F.Supp. 828.

Petitioner Joseph Orby Smith was first indicted in case No. 19,754-CR. for unlawful flight to avoid prosecution. He was then indicted on February 11, 1948, in case No. 19,834-CR. for robbery of a National bank and assault with a dangerous weapon.

The two cases were before Judge O'Connor, now deceased, who at that time held the criminal calendar. The records show that on March 16, 1948, Judge O'Connor appointed Herbert L. Hirson as attorney for defendant, and continued the case to March 22, 1948, for plea. The same thing occurred in Case No. 19,834-CR.

On March 16, 1948, Attorney Hirson wrote a letter to Judge O'Connor asking that he be relieved as attorney for Smith, and on March 17, 1948, Judge O'Connor appointed Edward C. Fruetel, and according to handwritten notes of Judge O'Connor, that appointment was accepted by the defendant, Joseph Orby Smith, and Mr. Hirson was relieved.

On April 21, 1948, the defendant, together with one William Joseph Montez, was charged in a superseding indictment in Case No. 19,993-CR. with robbery of a National bank and assault with a dangerous weapon, being the same bank robbery as charged in Case No. 19,834-CR.

In the meanwhile, on April 12, 1948, Case No. 19,754-CR. was set for trial on April 27, 1948, before Judge Beaumont. But with the superseding indictment returned on April 21, 1948, in Case No. 19,993-CR., that trial date was vacated, and on April 26, 1948, Case No. 19,993-CR. against the above-named petitioner and his co-defendant Montez was set for trial on May 11, 1948, before Judge Beaumont.

On April 11, 1948, the case was regularly transferred to the undersigned Judge, under local rules; was thereafter tried; a verdict of guilty was rendered as to both defendants,¹ and sentence was pronounced by the Court on May 14, 1948.

Smith appealed his conviction, and it was affirmed — 9 Cir., 173 F.2d 181.

Smith was present at the trial on a Writ of Habeas Corpus ad Prosequendum because he was in the custody of the State of California which took possession of him immediately after the sentence on May 14, 1948, and he was committed to and kept at a California Penal Institution until the expiration of his State sentence when he was transferred to Federal custody.

It was not until October, 1956, more than eight years after his trial and sentence in this court, that the prison authorities, who had Smith under constant observation, concluded that he was insane, and they transferred him to the United States Medical Center at Springfield, Missouri.

There have been some 70 communications written by Smith, either by hand or on the typewriter, all in the nature of petitions and demands which have come to this court since he filed his first petition in personam under 28 U.S.C. § 2255 on March 15, 1957. In that petition he said that he was then committed to the United States Medical Center for Federal Prisoners at Springfield, Missouri, as a mental patient. The court being of the opinion that he was a prisoner who was mentally incompetent, felt he could not act for himself, and denied the motion, upon which Petitioner took a propria-person-am appeal, and the Appellate Court reversed this court, and directed this court to hold a hearing. 9 Cir., 259 F.2d 125.

The Court then being confronted with the problem of how to hold a hearing for one who was insane and who was proceeding in personam, concluded that, it being a civil proceeding, the Federal Rules of Civil Procedure would apply. The Court then appointed Petitioner's Mother as guardian ad litem under F.R. Civ.P. 17(c). She thereafter abandoned the petition and requested the Court to order Petitioner returned to the U. S. Medical Center at Springfield, Missouri, which was done.

Petitions, letters and demands of various nature, however, continued, and still do continue, to come to this court and to the Appellate Court.

On March 2, 1960, Beatrice Smith (Petitioner's mother) as guardian ad litem, filed a new proceeding under 28 U.S.C. § 2255 which was given case No. 233-60-PH of this court. The Court, in the meanwhile, on the 2255 petition filed in Case No. 19,993-CR., had on March 6, 1959, adjudged Smith to be incompetent, after a psychiatric examination by a psychiatrist appointed by the court and one selected by Joseph Orby Smith. The Court also appointed counsel for the guardian ad litem.

On August 23, 1960, after another competency hearing on August 8, 1960, the Court found Joseph Orby Smith to be then competent, able to understand the proceedings, and to assist counsel in his defense, and struck the motion of Beatrice Smith as guardian ad litem in Case No. 233-60-PH, as well as the in personam motion which Smith had filed himself.

Thereafter on November 18, 1960, counsel Paul Augustine, Jr., who had been retained by Smith himself, filed the within proceeding.

The bases upon which the present petition rests are:

(1) That perjured testimony was knowingly used by the prosecutor, Cameron L. Lillie, Assistant U. S. Attorney, now deceased;

(2) That petitioner was not furnished with a list of the witnesses to be produced at the trial in accordance with 18 U.S.C. § 3432;

(3) That the F.B.I. Agents were friendly to the bank teller who was the principal identification witness, and that such activities were improper;

(4) That petitioner was insane at the time the offense was committed and at the time of trial and sentence, and that he was thus unable to understand the proceedings, or to assist counsel in his defense;

(5) That petitioner was deprived of effective representation of counsel because counsel was appointed only 15 days before date of trial, and he therefore did not have an opportunity to adequately prepare a defense;

(6) That counsel who was appointed for petitioner was incompetent, listing his acts which are alleged to demonstrate the incompetency of Smith's counsel.

The United States filed a response to this petition, and the matter was set for hearing on December 13, 1960, at 10:00 A.M. It was thereafter continued to January 17, 1961, at 10:00 A.M., at which time the Court proceeded to hear the matter and take evidence.

In the meanwhile, the Petitioner, on his own account in personam, filed a handwritten motion for writ of prohibition in the Appellate Court to prevent this court from proceeding with the hearing on his last filed Section 2255 petition. This matter was brought to the attention of this Court when a copy of the Order of the Appellate Court denying the petition for leave to file Petition for Writ of Prohibition was forwarded here to the Clerk's office.

In the Petition filed with the Appellate Court, petitioner contended that when he was examined by the psychiatrist, upon whose report this Court based its conclusions that he was then mentally competent and sane and could understand the proceedings and assist counsel in his defense, he had been placed "on a stimulant depressent drug (Artine) three (3) times daily which controled the petitioner in a rational state."

When the matter was set on January 17, 1961, the Court at that time continued the hearing to January 20, 1961, and directed that the psychiatrists—four by this time—who in the meanwhile had examined petitioner, be present on that date and be prepared to examine petitioner that morning and determine whether or not he was then, on that date, sane, competent, able to understand the proceedings, and assist his counsel in his defense.

At the beginning of the hearing petitioner, by himself and by his counsel, consented to the order of the court directing the four psychiatrists to examine petitioner at one time, with a court reporter present, and petitioner's attorney, if he desired, before the Court would proceed further with the hearing.

The four psychiatrists proceeded to conduct the examination which took about an hour; whereupon each of them were called to the witness stand, and each testified that petitioner was then, on that day, presently competent, sane, able to...