United States v. Hester, 71 Cr. 218(4)
| Decision Date | 19 June 1973 |
| Docket Number | 73 C 186(4).,No. 71 Cr. 218(4),71 Cr. 218(4) |
| Citation | 361 F. Supp. 1404 |
| Parties | UNITED STATES of America, Plaintiff, v. William HESTER, Defendant. William HESTER, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
William Hester, pro se.
Daniel Bartlett, Jr., U. S. Atty., Wesley D. Wedemeyer, Asst. U. S. Atty., for respondent.
William Hester is incarcerated pursuant to a jury trial conviction in this Court in Criminal Action 71 Cr 218(4), of conspiracy to distribute heroin and the distribution of heroin; he was sentenced to two consecutive terms of five years' imprisonment. His conviction was affirmed on appeal. United States v. Hester, 465 F.2d 1125 (8th Cir. 1972). A subsequent joint motion pursuant to 28 U.S.C. § 2255 to set aside his sentence, and pursuant to Fed.R.Crim.Pro. 35 for a reduction of sentence was denied. This denial was affirmed on appeal in an unreported opinion. United States v. Hester, No. 72-1748 (8th Cir. March 22, 1973).
Hester now has filed a petition for a writ of error coram nobis in Criminal Action No. 71 Cr 218(4); he has also filed a motion to set aside and vacate his sentence (28 U.S.C. § 2255) and a petition for a writ of habeas corpus both of which have been consolidated in Civil Action No. 73 C 186(4).
In support of his petition for a writ of error coram nobis Hester shows in the transcript of the trial two instances of inconsistency in the testimony of arresting government agents. The first inconsistency relates to which government agents were present at petitioner's arrest. Agent Thompson testified that he and Agent Peoples arrested petitioner and that Agents Hill and Willis were not present at the arrest. (Tr. 104). Agent Peoples testified that Agents Hill and Willis were present. (Tr. 76-77). The second inconsistency related to the cause of petitioner's head injuries suffered at the time of the arrest. Agent Moriarity testified that he assisted in the arrest, that he and Agent Peoples struck petitioner when he attempted to reach for a weapon, and that petitioner struck his head on a metal cold air return duct. (Tr. 331-333). By these inconsistencies petitioner attacks the credibility of the agents in their trial testimony regarding the events of his arrest and the subsequent interrogation. He further purports to show, for the first time, that the cold air return duct in the room where he was struck by the agents is too much near the ceiling for him to have fallen against it.
This Court has power to issue a writ of error coram nobis, 28 U.S.C. § 1651, to correct errors of record of the most fundamental character. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Gajewski v. United States, 368 F.2d 533 (8th Cir. 1967), cert. den., 386 U.S. 913, 87 S.Ct. 865, 17 L.Ed.2d 786 (1967). However, where a motion to vacate, set aside or correct a sentence is an available remedy, as it is here, it should be utilized instead of a petition for a writ of error coram nobis. Adam v. United States, 274 F.2d 880 (10th Cir. 1960); Cito v. United States, 283 F.2d 49 (10th Cir. 1960), cert. den., 366 U.S. 938, 81 S.Ct. 1664, 6 L.Ed.2d 849. Therefore, this ground of testimonial inconsistency and placement of the cold air duct will be considered as a ground for relief under 28 U.S.C. § 2255. Burns v. United States, 321 F.2d 893 (8th Cir. 1963).
In support of his petition seeking habeas corpus relief Hester alleges that Juror No. 1 slept at times during his trial. This Court will consider this ground in conjunction with those set out in his petition for relief under 28 U.S.C. § 2255.
In support of his petition for relief under § 2255, Hester alleges (1) that he was not advised of his rights, contrary to the trial evidence of his post-arrest admission of guilt; (2) that he was improperly and unlawfully arrested; and (3) that he received ineffective assistance of counsel.
Petitioner's allegation of testimonial inconsistency is an attack upon the sufficiency of the evidence. Such an attack is not properly made in collateral attack on a conviction, but rather on direct appeal. Holt v. United States, 303 F.2d 791 (8th Cir. 1962), cert. den., 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132; Cardarella v. United States, 351 F.2d 443 (8th Cir. 1965), cert. den., 382 U.S. 1020, 86 S.Ct. 640, 15 L.Ed.2d 534; Weaver v. United States, 418 F.2d 475 (8th Cir. 1969). The trial testimony of arresting agents, of petitioner's wife, and of petitioner himself indicate that as many as six agents may have entered petitioner's premises to effect the arrest. There was inconsistent testimony over the presence of Agents Hill and Willis, and the presence of Agent Moriarity was not clearly indicated in the testimony of the other agents. However, these seeming inconsistencies are not sufficient to rise to the level of perjury. The Court notes that petitioner has not alleged that perjured testimony was knowingly or willfully used by the prosecution. Early v. United States, 309 F.Supp. 421 (D.Kan.1969). The seeming inconsistency in the testimony, as petitioner admits, may affect the agents' credibility. This issue of credibility was resolved against the petitioner by the jury.
Petitioner's allegation regarding the placement of the cold air return duct is a fact, if true, that he knew at the time of trial. It was not raised at that time, in spite of the emphasis placed by the defense upon issue of whether petitioner was beaten by the arresting agents without provocation.
Petitioner's allegation that Juror No. 1 slept during the course of the trial was not treated by the government in its response to the petition for a writ of habeas corpus. The Court has carefully reviewed the trial transcript and has found no reference to an instance in which this juror slept. The allegation is made for the first time...
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United States v. Hester, 73-1528.
...and the coram nobis action in terms of a § 2255 motion. These three filings were considered together by the court in United States v. Hester, 361 F.Supp. 1404 (E.D.Mo.1973). 2 Hester has prosecuted another § 2255 motion on grounds other than those asserted here. For this Court's decision af......