Smith v. United States

• Decision Date: 30 December 1964
• Docket Number: No. 17614.,17614.
• Citation: 339 F.2d 519
• Parties: John Henry SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

339 F.2d 519 (1964)

John Henry SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 17614.

United States Court of Appeals Eighth Circuit.

December 30, 1964.

Theodore F. Schwartz, Clayton, Mo., for appellant.

John Newton, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and DELEHANT, Senior District Judge.

DELEHANT, Senior District Judge.

In ostensible, and declared, reliance on Title 28 U.S.C. § 2255, John Henry Smith, identified hereinafter as "appellant," on July 22, 1963, filed in the United States District Court for the Eastern District of Missouri, Eastern Division, referred to hereinafter as, the trial court, a motion "to vacate and set aside judgment and commitment of (sic) a twenty-five year sentence imposed by the Honorable George H. More (sic), United States District Judge." The judgment and sentence at which that motion is directed are a judgment of guilty, and of conviction, under date of May 27, 1947, and a sentence thereunder of like date, to the custody "of the Attorney General or his authorized representative for imprisonment for a period of twenty-five (25) years as to and under the charge as contained in count one of the indictment," in Case No. 25435, a criminal action, in the trial court, "such term of imprisonment to commence upon the release of said defendant from the Missouri State Penitentiary under the concurrent terms of imprisonment of eight (8) years (t)heretofore imposed upon said defendant on May 12, 1947, in Division No. 12 of the Circuit Court of the City of St. Louis in cases numbered 236, 237, 238 and 239, of said court." To the proceeding initiated by the filing of such motion to vacate and set aside, the trial court attributed the number 63 C 267. The motion was, thus, and correctly, regarded as the initiation of a new action on the civil side of the trial court's calendar, although its declared, and actual, objective was the procurement of demanded corrective action in a criminal proceeding earlier prosecuted in such court. The motion was obviously filed sixteen years, one month, twenty-five days after the entry of the judgment and commitment at which it was and is aimed.

Fastened into the court file in the trial court's Case No. 63 C 267, whose first filing is the Motion to Vacate and Set Aside, and with no filing mark, but bearing September 18, 1963 as the date of its signature, is a typewritten resistance to such motion, signed in behalf of the United States Attorney for the District of the trial court.

On September 18, 1963, the trial court, speaking through the Honorable James H. Meredith, then and yet, one of its judges, entered an order directing that appellant be returned to the district of the trial court on September 30, 1963 at 10:00 o'clock A.M. for the purpose of being present and testifying upon such motion; that he be so made available by the United States Marshal or other authorized officer and the Warden of the United States Penitentiary at Atlanta, Georgia; and that, after the hearing or other disposition of such motion should have been completed, the officers so commanded have him before the court to abide its orders, judgments and decrees which might be rendered, and, otherwise, to return him immediately to such penitentiary, there to be held by its Warden in custody to serve out his sentence under which he was then being held.

On September 25, 1963, the trial court, again speaking through Judge Meredith, and, on the prompting of an affidavit of poverty and motion for appointment of counsel, bearing date September 20, 1963, and made by appellant and by him filed on September 23, 1963, made and entered a further order appointing Theodore F. Schwartz, Esq., of the St. Louis, Missouri bar as counsel, in the proceedings upon such motion, for appellant. The court pauses at this point to observe that Mr. Schwartz accepted that appointment and represented appellant with conspicuous industry and ability in the presentation of, and briefing in connection with, the motion in the course of its hearing in the trial court, and with like skill and care has prepared the pleadings for appeal to, and the briefs, and made the arguments on appeal in, this court. He has the sincere appreciation of this court.

Through Mr. Schwartz as his counsel, appellant executed, and filed in the trial court on October 8, 1963, the responses to a questionnaire on a form apparently prepared for, and used within, the trial court in proceedings "attacking a sentence imposed in that court."

In such proceeding identified as 63 C 267 in the trial court, the motion came on for hearing therein on October 31, 1963, Mr. Schwartz representing the appellant (petitioner), who was also present, infra, and John A. Newton, Esq., Assistant United States Attorney, representing the respondent, United States of America. The records both in Case No. 63 C 267 and in the criminal action, Case No. 25435 were, by the trial court, considered, and oral evidence, including that of appellant in his own behalf, and sundry exhibits were introduced and received. Transcript of the trial record in seventy-seven pages was made (quite obviously after the trial court's ruling), and is a part of the trial court's record. Typewritten briefs of counsel were filed. They reflect the fact, as does also the transcript, that the motion was submitted only upon two grounds by the motion asserted, namely (a) that the court failed to comply with Rule 11, Federal Rules of Criminal Procedure,¹ in that it accepted the appellant's plea of guilty to Count I of the indictment without ascertaining that such plea was made voluntarily with understanding of the nature of the charge, and the penalty therefor allowable, before the acceptance of the plea, and (b) that appellant was not adequately represented by counsel, within the contemplation of the sixth amendment of the constitution of the United States.²

On January 8, 1964, the trial court, again speaking through Judge Meredith, made and entered in Case No. 63 C 267 a Memorandum Order, wherein the trial court made the findings and entered the order reflected in a footnote hereto³ quoted from that filing.

On January 15, 1964, appellant filed in the trial court a motion to appeal in forma pauperis to this court from the foregoing judgment of January 8, 1964; and, on the same day, the trial court, "finding that the appeal is not frivolous and presents a substantial question," sustained such motion, and granted to the appellant leave to appeal to this court in forma pauperis, and ordered the Court Reporter, at the government's cost, to prepare and file with the Clerk of the trial court a transcript of the proceedings of the hearing on the Motion.

The appellant, on January 16, 1964, filed his notice of appeal to this court from the Memorandum Order of the trial court under date of January 8, 1964. The appeal has been submitted here on typewritten briefs and oral argument, and upon the original files, which include those in both of the trial court cases numbered 63 C 267 and 25435.

The criminal proceeding, Case No. 25435, in the trial court, is basic to all of the litigation mentioned herein, including No. 63 C 267, and this appeal in that case. The original files in Case No. 25435 are before this court. And the historical aspect of this opinion rests in considerable measure on that record.

On May 15, 1947, the grand jury in and for the Eastern District of Missouri, Eastern Division, found and returned an indictment in two counts, in Count I whereof, it charged that on or about the 8th day of December, 1946, JOHN HENRY SMITH (alias Willie Smith, alias John Henry Barnett) and PAUL JOHN JACKSON, unlawfully, willfully, knowingly and feloniously transported and caused to be transported * * * in interstate commerce a person who had been by said defendants unlawfully seized, confined, kidnapped, abducted, carried away, and held, for the purpose of robbery, to-wit, one William Edward Swink who was then and there by them, the said defendants, transported by means of an automobile from the City of St. Louis, in the State of Missouri, within the Eastern Division of the Eastern Judicial District of Missouri, and within the jurisdiction of the trial court, to the County of Madison in the State of Illinois, in violation of the then Title 18 U.S.C., section 408a, (see 48 Statutes at Large, 781, Act of May 18, 1934, Ch. 301; now, somewhat amended, Title 18 U.S.C., section 1201). It is briefly observed that in and by Count II of that indictment, those two designated defendants were charged with the transportation in interstate commerce of a stolen motor vehicle knowing it to have been stolen, in violation of the then Title 18 U.S.C., section 408 (now Title 18 U.S.C. § 2312), commonly known as the Dyer Act. Because the second count of the indictment was dismissed on arraignment, infra, it is not directly involved upon this appeal. It is mentioned, however, on the score of its bearing on the issue of the alleged inadequacy of counsel for the appellant. It was in the identical vehicular operation alleged in Count I that the operation charged in Count II occurred.

At the time of arraignment on the indictment, both John Henry Smith and Paul John Jackson were in the custody of the State of Missouri, under sentences pronounced upon both of them, but severally, in and by Division 12 of the Circuit Court of the City of St. Louis, Missouri, on May 12, 1947, in four separate cases in that court, each involving charges of first degree robbery against both of them, numbered consecutively 236, 237, 238 and 239, the defendant John Henry Smith under four sentences of eight years each, to be served concurrently, and the defendant Paul John Jackson under four sentences of five years each, to be served concurrently. Those state court sentences arose out of the transaction which also led to the...