U.S. v. Talk, 78-1468

• Decision Date: 01 May 1979
• Docket Number: No. 78-1468,78-1468
• Citation: 597 F.2d 249
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Truman TALK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 249

597 F.2d 249

UNITED STATES of America, Plaintiff-Appellee, v. Truman TALK, Defendant-Appellant.

No. 78-1468.

United States Court of Appeals, Tenth Circuit.

Submitted March 26, 1979.

Decided May 1, 1979.

Truman Talk, pro se.

R. E. Thompson, U. S. Atty., Robert Bruce Collins, Asst. U. S. Atty., Albuquerque, N. M., for plaintiff-appellee.

Before SETH, Chief Judge, and BARRETT and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Truman Talk appeals denial of his 28 U.S.C. § 2255 motion to vacate with respect to a sentence imposed after he was convicted of rape on an Indian reservation, in violation of 18 U.S.C. § 1153. Talk was sentenced to a 20-year prison term, subject to 18 U.S.C. § 4208(a)(2), ¹ and his conviction was affirmed. United States v. Talk, 418 F.2d 53 (10th Cir. 1969).

The issue in this appeal is whether Talk's most recent § 2255 motion was properly dismissed as a successive postconviction motion under Supreme Court Rule 9(b) governing § 2255 proceedings, (See 28 U.S.C.A. foll. § 2255, supp. 1978), which reads:

A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

Talk has filed numerous § 2255 motions. His initial postconviction claim challenged the statute under which he was convicted, the jury instructions and the jury selection procedures. The district court denied relief, and we affirmed. Talk v. United States, 509 F.2d 862 (10th Cir. 1974), Cert. denied, 421 U.S. 932, 95 S.Ct. 1661, 44 L.Ed.2d 90 (1975).

After his first parole hearing in April 1975 failed to gain his release, Talk filed a motion in April 1976 for modification or reduction of sentence, treated as being under § 2255, alleging the parole board had failed to give his request adequate consideration. Supporting memorandum indicates Talk based his claim on an application of the less restrictive guidelines of § 4208(a)(1), rather than (a)(2), the provision under which he was sentenced, which leaves the determination to the discretion of the board of parole. The trial court denied relief, without giving reasons. We must assume the court considered the issues in light of both 18 U.S.C. § 4208(a)(2) and the new parole guidelines, effective in 1973.

Talk filed another § 2255 motion in July 1976 challenging the first parole denial, arguing once again that he should have been paroled prior to serving one-third of his sentence, under the § 4208(a)(1) guidelines. This second motion was dismissed as successive and for failure to exhaust administrative remedies. ²

Talk was considered for and denied parole a second time in April 1977. He filed another § 2255 motion in March 1978, alleging the same issues raised in his motions of two years before: that it was the intent of his sentencing judge to permit parole prior to serving one-third of his sentence term. The trial court dismissed the motion as successive and this appeal followed.

Supreme Court Rule 9(b) governing § 2255 motions codifies existing case law regarding successive petitions. The rule is intended in part to allow dismissal of claims purposely withheld by a defendant in an effort to obtain more than one § 2255 hearing. Richerson v. United States, unpub. op. No. 77-2096 (10th Cir., filed Dec. 4, 1978). In addition, Rule 9(b) permits dismissal of successive motions raising the same grounds previously asserted and denied. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); United States v. Stephens, 425 F.2d 247 (10th Cir. 1970); Walker v. Taylor, 338 F.2d 945 (10th Cir. 1964).

Ordinarily, since the April 1976 motion was decided on the merits, the July 1976 and March 1978 motions alleging the same legal issues would both be dismissed as successive. Here, however, Talk became eligible for consideration and was again denied parole between his first 1976 motions under § 2255 and the 1978 motion now under consideration. The new question before us then is whether the intervening parole hearing should alter the outcome under Rule 9(b). We hold Rule 9(b) is broad enough to bar this later motion as successive.

A § 2255 motion is decided on the merits "if factual issues were raised in the prior application, and it was not denied on the basis that the files and records conclusively resolved these issues, an evidentiary hearing was held." Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). In April 1976 Talk filed both a motion and memorandum supporting his position that the parole board had not given "meaningful consideration" to his application. Although the trial court gave no reasons for its dismissal, the motion raised a mixed question of fact and law with respect to his sentencing and his rights to parole. The ruling on the April 1976 motion must be considered to have been on the merits. Our court has consistently deferred to decisions by a parole board, permitting board discretion for determinations of parole eligibility. Walker v. Taylor, 338 F.2d 945 (10th Cir. 1964); Leaphart v. Benson, unpub. op. No. 78-1340 (10th Cir., filed Feb. 20, 1979). We will not review the appropriateness of denial of parole absent a showing of arbitrary and capricious action, or a misapplication of the law.

The Supreme Court indicated in Sanders that the burden under a § 2255 motion is on the petitioner to show "that the ends of justice would be served by permitting" redetermination of grounds rejected in an earlier motion. "If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law...