United States v. Lee, 71-1327.

• Decision Date: 20 July 1971
• Docket Number: No. 71-1327.,71-1327.
• Citation: 446 F.2d 350
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Eugene LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

446 F.2d 350 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Eugene LEE, Defendant-Appellant.

No. 71-1327.

United States Court of Appeals, Ninth Circuit.

July 20, 1971.

Robert Eugene Lee, in pro. per.

Jerald E. Olson, Asst. U. S. Atty., Stan Pitkin, U. S. Atty., Paul S. Fenton, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Before KOELSCH, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

During recent years the federal courts have been deluged with petitions by state prisoners seeking writs of habeas corpus and petitions by federal prisoners seeking comparable relief under 28 U.S. C. § 2255. Most of these petitions are prepared without the assistance of counsel, and as a result it is often difficult to tell just what legal ground for relief, if any, the petitioner has. Moreover, because principles of res judicata do not apply, many prisoners file repeated applications, a practice that seems to be accelerating.

In order to protect themselves against the often futile and always time-consuming workload that these petitions entail, the district courts have adopted various expedients. One, which has become almost universal, is a rule of court requiring that considerable specified information be stated in the petition. The rule is implemented by a requirement that a prescribed form be used, and we have upheld such a requirement. Hooker v. United States, 9 Cir., 1967, 380 F.2d 5. Such a rule (Rule 34) is in force in the Western District of Washington, from which this appeal comes.

In addition, the District Judge who received Lee's petition has adopted a form of order which is sent to each petitioner who asks the Clerk for the prescribed petition forms. Its purpose is to forestall repeated petitions, and its relevant content is set out in the margin.¹ This appeal attacks the validity of that order.

The appeal arises in this way: On October 1, 1968, petitioner Lee pled guilty to a charge of violating 18 U.S.C. § 2113(c). On October 25, 1968, he was sentenced to ten years. On February 2, 1970, he filed a petition for relief under section 2255. A copy of the order that we have mentioned had been sent to him with the forms for the petition. The sole ground stated in the petition was that he received only $75.00 of the money stolen in the bank robbery, and so could not, under 18 U.S.C. § 2113(b), be sentenced to more than one year. The court denied the petition and denied leave to appeal in forma pauperis. Lee did not pursue the matter further.

On October 23, 1970, Lee tendered a second petition for relief under section 2255, together with a motion for leave to proceed in forma pauperis. In the petition, Lee alleges:

"I was mentally incoptent, sic before, during and after entering my plea of guilty. Due to the fact I suffered from mental blackouts. See `Attached exhibits — A & B\'.

* * * * * *

"I have no real knowledge of my plea of guilty. Nor do I recall being in court. Thus at the time of my plea of guilty I was mentally incompetent and was not able to understand the proceedings against me."

The trial judge denied leave to proceed in forma pauperis. His opinion states:

"Defendant offered no reason why he did not make this claim in his earlier petition for § 2255 relief. In addition, he supported the motion with a copy of a doctor\'s report purporting to show he was under a doctor\'s care for occasional blackouts in January and February, 1968, which shows he must have been aware of the claimed defect at the time his earlier petition was filed.

"This is exactly the sort of second motion the Court\'s form order is designed to avoid. If this ground for relief had been mentioned in the earlier motion, it could have been considered and acted upon at that time, with considerably less expenditure of judge-time, a commodity which is in scarce supply in these days.

"The Court\'s order of June 5, 1969, told the defendant that any ground for relief not included would be deemed willfully omitted. It is inconceivable that if the defendant had truly `blacked out\' at the time of plea and/or sentencing, he would have reserved such a claim in the face of such a stern warning. Be that as it may, the Court hereby deems that the claim made by petitioner in the motion lodged October 27, 1970 was willfully omitted by the petitioner, and it will not now be accepted or considered by the Court. It is therefore

"ORDERED that leave to proceed in forma pauperis is denied. * * *"

The appeal is from that order.

The reasons given by the trial judge (apart from his reliance on the order quoted in footnote 1) are precisely the reasons used by this court in affirming denial of a section 2255 motion in Sanders v. United States, 9 Cir., 1961, 297 F.2d 735. The facts there are similar to the facts here. But the Supreme Court granted certiorari in Sanders and reversed. Sanders v. United States, 1963, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148. We need not repeat here the reasoning of the Sanders opinion. The statutory provisions there considered (28 U.S.C. §§ 2255 and 2244(a)) have not since been amended in any material respect. And Price v. Johnston, 1948, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356, on which the Court relied in Sanders, remains good law. Sanders and Price, taken together, make it clear that when a second application is presented resting on a new ground, the question is whether there has been an abuse of the remedy. Moreover, they make it equally clear that the burden is on the state or the government "to make that claim with clarity and particularity in its return to the order to show cause" (Sanders, supra, at...