United States v. Flanagan

• Decision Date: 30 October 1969
• Docket Number: Civ. A. No. 5997-R.
• Parties: UNITED STATES of America v. Lawrence Marvin FLANAGAN.
• Court: U.S. District Court — Eastern District of Virginia

305 F. Supp. 325

UNITED STATES of America v. Lawrence Marvin FLANAGAN.

Civ. A. No. 5997-R.

United States District Court E. D. Virginia, Richmond Division.

October 30, 1969.

David G. Lowe, Asst. U. S. Atty., Richmond, Va., for plaintiff.

Philip Rogers, Natiss & Rogers, Garden City, N. Y., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Lawrence Marvin Flanagan was convicted in this Court on October 2, 1961, of interstate transportation of a stolen motor vehicle, 18 U.S.C. § 2312. He waived representation by counsel, either retained or appointed, and pled guilty. The Court accepted his plea, suspended sentence, and placed him on probation for two years. The period of probation expired on October 2, 1963.

Defendant moved on October 3, 1968, under 28 U.S.C. § 2255, to vacate and set aside the sentence, alleging that his waiver of the right to counsel was not intelligently done and that his guilty plea was not knowingly entered and therefore void. On June 17, 1969, this Court set aside the conviction after examining the transcript of defendant's arraignment and concluding that his plea was not a voluntary one. Subsequently, on motion of the United States, the order was vacated on the ground that the Court was unable to consider a motion under 28 U.S.C. § 2255 because the defendant was no longer "in custody under sentence of a court established by Act of Congress."

Defendant now moves again for vacatur of the judgment of 1961, again styling his motion as one for relief under 28 U.S.C. § 2255, and reiterating his prior claims. He asserts additionally that in consequence of his federal felony conviction he is subject to certain legal disabilities under the laws of New York State, his place of residence. See Carafas v. LaVallee, 391 U.S. 234, 237, n. 4-8, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Moreover, Flanagan alleges that he is now under indictment by a Nassau County, New York, Grand Jury for the crime of possession of a dangerous weapon as a felony. Were it not for this prior federal felony conviction that offence would allegedly be only a misdemeanor. A copy of the state indictment is in the record.

The United States argues, as it did in opposing the previous motion, that this Court is unable to entertain defendant's motion because he is not in "custody." The Court believes that the government's argument is sound insofar as it relies upon the limits of this Court's power under § 2255.

In Carafas v. LaVallee, supra, the Supreme Court held that a state prisoner's federal habeas corpus case had not become moot when he was released unconditionally by state authorities; in so doing it reversed Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960). Carafas had filed his petition while still confined. His release, though not qualified by any parole limitations, see Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), was conditioned by statutory disabilities which would not apply to him if his conviction were invalidated. Therefore the Court said that the petitioner retained sufficient interest in the outcome of the litigation so that the matter had not become moot.

The Carafas decision does not, however, seem to say that the imposition of disabilities upon convicted felons consists in itself of "custody" sufficient so that a district court may acquire jurisdiction if a petition for a writ of habeas corpus is filed when only such burdens rest on a convicted felon. The opinion seems to draw some distinctions between such instances and cases like Carafas where release follows the filing of a petition.

The substantial issue, however, which is posed by Parker v. Ellis, is not mootness in the technical or constitutional sense, but whether the statute defining the habeas corpus jurisdiction of the federal judiciary in respect of persons in state custody is available here. * * * We conclude that under the statutory scheme, once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such an application.

The federal habeas corpus statute requires that the applicant must be "in custody" when the application for habeas corpus is filed. * * * But the statute does not limit the relief that may be granted to discharge of the applicant from physical custody. * * It provides that "the court shall * * * dispose of the matter as law and justice require." 28 U.S.C. § 2243. Carafas v. LaVallee, supra, 391 U.S. 238-239, 88 S.Ct. 1559.

The statutory scheme requires that a petitioner suffer from more than restrictions on his civil rights at the time the petition is filed. Such was the case in Carafas v. LaVallee, supra. And in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 (1968), a direct appeal, the Supreme Court made clear that Carafas holds only that release does not moot a case, not that disabilities constitute the custody required by the statute, Sibron v. New York, supra, 51, 88 S.Ct. 1889. See also, Hewett v. North Carolina, mem. decis. 415 F.2d 1316 (4th Cir. August 28, 1969), which illustrates that, once jurisdiction has attached, burdens sufficient to preserve a case from mootness need be only slight.

Of course this discussion in Carafas v. LaVallee, supra, is directly relevant only to the habeas corpus statute, whereas the statutory scheme under which Flanagan seeks relief is 28 U.S.C. § 2255. But the language of that statute, allowing for motions in the federal sentencing court, is in pertinent part quite similar to that of the habeas corpus statute:

A prisoner in custody * * * claiming the right to be released * * * may move the court which imposed the sentence to vacate, set aside or correct the sentence.

A construction which requires the prisoner to be under some restraint greater than the continuing disabilities which beset Flanagan when he files his motion is consistent with this language. And, as in the statute under which Carafas proceeded, the relief which the Court may grant is authorized in broad terms in § 2255:

If the court finds that the * * * judgment is vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

Such a conclusion is bolstered by rulings establishing, in related areas, the parallel nature of the collateral review available to federal and state prisoners. In Kemplen v. United States, mem. decis. No. 12,692 (4th Cir., April 21, 1969), our Court of Appeals, on the authority of Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) and Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969), decided that review under § 2255 was available to inmates of state prisons challenging future federal sentences, since the right to review future state-imposed sentences had been granted under the habeas corpus statutes:

Although § 2255 was not before the Court for consideration in Peyton v. Rowe, there is no reason to think that the Court would depart from its long standing holding that the scope of the remedy under § 2255 is identical to the scope of the Federal habeas corpus remedy, and that § 2255 affords a prisoner the same rights he would have in a habeas corpus proceeding, but in a different forum.¹ Kemplen v. United States, supra.

We conclude, therefore, that relief under § 2255 cannot be granted when the federal prisoner moves for relief after his release from any federal restraint, and at a time when the federal conviction is not prolonging the service of any consecutively served sentence. Compare Tucker v. Peyton, 357 F.2d 115 (4th Cir. 1966).

This case is not concluded, however, by a denial of relief under § 2255, for this Court would not be justified in denying relief if it is available on some alternative basis. Johnson v. United States, 344 F.2d 401, 409 (5th Cir. 1965); Igo v. United States, 303 F.2d 317 (10th Cir. 1962). United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) provides authority for the issuance of a writ of error coram nobis by the sentencing court to set aside a federal conviction. Although a motion for such relief is "of the same general character as one under 28 U.S.C. § 2255," United States v. Morgan, supra, 505 n. 4, 74 S.Ct. 249, in that it is a part of the original criminal case and not a separate proceeding, this Court's jurisdiction is not subject to the requirement of § 2255 that the defendant be a prisoner "in custody" under federal sentence when he makes his motion, for power to issue the writ proceeds from the All Writs Act, 28 U.S.C. § 1651.²

In Morgan, the Supreme Court explicitly rejected the contention that, by the passage of § 2255, Congress had codified, with specific limits, federal coram nobis procedure. But nonstatutory relief, the Court said, should be granted "only under circumstances compelling such action to achieve justice," at 511, 74 S.Ct. at 252. Morgan had been convicted upon his plea of guilty at the age of nineteen; he alleged that his plea and the judgment of conviction were invalid because his waiver of counsel was constitutionally deficient. His federal conviction had caused a New York court to impose heavier punishments on him, as a multiple offender, after a subsequent state conviction. The case thus bears many similarities to this one. The most significant distinction is that Flanagan, the defendant in this case, has not yet been convicted and sentenced and is therefore not now suffering any augmented restraint which can be said to flow from his federal conviction, other than the civil disabilities. The question arises, therefore, whether a case or controversy is presented to this Court.

The federal decisions on the availability of coram nobis relief fall into no definite pattern. The law in this area is plainly in a state of flux, and this uncertainty is due in part at least to very recent developments in...