United States v. Lovely

Decision Date28 May 1963
Docket NumberNo. 8783.,8783.
Citation319 F.2d 673
PartiesUNITED STATES of America, Appellee, v. William Theodore LOVELY, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Chester E. Wallace, Atlanta, Ga., for appellant.

Marvin L. Smith, Asst. U. S. Atty. (Terrell L. Glenn, U. S. Atty., on brief), for appellee.

Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge.

This is an appeal from an order of the United States District Court for the Eastern District of South Carolina denying a motion of William Theodore Lovely under 28 U.S.C. § 22551 to vacate a life sentence imposed November 24, 1948, which he is now serving. We think the action of the District Court must be affirmed.

Lovely was indicted on a charge of rape and convicted by a jury. The indictment was based upon the admittedly pertinent federal statute and the crime was alleged to have been committed in 1947 on the federal military reservation known as New Fort Jackson, Richland County, South Carolina. Lovely's principal contention is that the trial court lacked jurisdiction of the offense because jurisdiction purportedly ceded by the State of South Carolina over the area comprising New Fort Jackson was not effectively vested in the United States under the provisions of the South Carolina statutes dealing with the cession of jurisdiction to the federal government. He contends that, because of lack of federal jurisdiction, his conviction and sentence were void and are presently subject to attack under 28 U.S. C. § 2255 notwithstanding the fact that he failed to raise the jurisdictional question either at his trial or on a subsequent direct appeal to this court. Section 2255 provides, in substance, that a federal prisoner may seek relief at any time by motion to vacate a sentence imposed by a court which was without jurisdiction to impose the sentence. Therefore, we shall consider the question raised as to the trial court's jurisdiction.

In support of his position, Lovely relies primarily upon South Carolina Code (1952), ch. 2, art. 4, §§ 39-81 through 39-83,2 originally enacted in 1871, purporting to cede concurrent jurisdiction to the United States over so much land as is necessary for general public purposes, but providing that jurisdiction thereby ceded shall not vest until the United States acquires title to the land involved and also causes the evidence of such title to be recorded in "the office where, by law, the title to such land is recorded." It appears to be true, as Lovely argues, that the Government has at no time complied with this requirement by recording in the records of Richland County evidence of its title to the New Fort Jackson area.

At trial the Government introduced in evidence, as proof of asserted federal jurisdiction over the area in question, Petition in Condemnation, Declaration of Taking, Certificate of Clerk of Court as to deposit of funds, the Judgment on Declaration of Taking dated May 5, 1941, and an authenticated copy of a letter dated November 4, 1943, from Henry L. Stimson, Secretary of War, to Honorable Olin D. Johnston, then Governor of South Carolina. The first paragraph of this letter is as follows:

"The laws of the State of South Carolina (an act of the General Assembly of South Carolina approved February 19, 1908 (Act No. 521, Acts of South Carolina, 1908, p. 1127; see also par. (52), sec. 2042, chap. 93, title 23; vol. II (Civil Code), Code of Laws, South Carolina, (1942)) permit the assumption of exclusive Federal jurisdiction over lands within that State acquired by the United States for military and certain other purposes."

The next to the last paragraph of the letter states:

"Accordingly, notice is hereby given that the United States accepts exclusive jurisdiction over all lands acquired by it for military purposes within the State of South Carolina, title to which has heretofore vested in the United States, and over which exclusive jurisdiction has not heretofore been obtained."

The laws, specifically mentioned in the first paragraph of the letter of Secretary of War Stimson, at the time of the offense charged in the indictment, were embodied in South Carolina Code (1952), ch. 2, art. 1, §§ 39-51 through 39-53.3 The Secretary of War's letter referred also to 40 U.S.C. § 255.4 Governor Johnston, without apparent objection, acknowledged receipt of the letter on November 8, 1943.

If the South Carolina statutes upon which Lovely relies to defeat jurisdiction (see footnote 2, sections 39-81 through 39-83) were the only statutes covering the subject of the cession of jurisdiction to and the vesting of jurisdiction in the federal government, we would not hesitate to declare that the court in which Lovely was convicted did not have jurisdiction because of failure of the Government to record evidence of title and we would hold, accordingly, that the motion to vacate the judgment and sentence should have been granted. See Markham v. United States, 215 F.2d 56 (4th Cir. 1954). But the South Carolina statutes set forth in footnote 3, to which the Secretary of War referred in his letter of November 4, 1943, were enacted in 1908 and quite obviously cover the same subject matter as the 1871 statutes upon which Lovely relies.

Section 39-51 provides, in substance, that the consent of the State of South Carolina to the acquisition of lands by the United States by purchase, condemnation or otherwise is given in accordance with art. 1, § 8, cl. 17 of the Constitution of the United States. The constitutional provision upon which the State's consent was based grants power to Congress

"To exercise exclusive Legislation in all Cases whatsoever, * * * and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; * * *"

In Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091 (1930), it was held that Camp Pike, an army mobilization, training and supply station of the United States, "comes within the words `forts, magazines, arsenals, dock-yards, and other needful buildings' in the constitutional provision." 281 U.S. 652, 50 S.Ct. at 456. Lovely argues that it is significant that the South Carolina Legislature omitted from section 39-51 any reference to "forts" as one of the purposes for which land might be acquired by the United States and that this omission must have been deliberate, indicative of intent to confine the provisions to small areas and less than would be required for large military installations. It is true that "forts," included in art. 1, § 8, cl. 17 of the Constitution, were not specifically mentioned in the state statute (section 39-51) but the statutory phrases — "or other public buildings whatever or for any other purposes of the government" — are sufficiently comprehensive to include forts and military installations such as New Fort Jackson, and equally as comprehensive as the phrase, "for the public purposes of the United States." found in section 39-81 which Lovely asserts is exclusively applicable. Cf. In re Military Training Camp, 260 F. 986 (E.D.Va. 1919).

In Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939), a prisoner of the State of Georgia filed a petition for a writ of habeas corpus. He had been tried in a federal court and convicted of murder committed in a national military park in the State of Georgia and it was his contention that the court lacked the exclusive jurisdiction then required by the United States Criminal Code. The Supreme Court held that a 1927 Georgia general statute, Laws 1927, p. 352, purporting to cede exclusive jurisdiction to the United States over any land "which has been or may hereafter be acquired for custom-houses, post-offices, arsenals, other public buildings whatever, or for any other purposes of government" was effective to vest in the United States exclusive jurisdiction over the military park. The similarity of the language of the Georgia statute considered in the Bowen case and the language of the South Carolina statute, section 39-51, is striking. In Bowen v. Johnston, supra, 306 U.S. at pages 29 and 30, 59 S.Ct. at page 447, the Court stated:

"The argument is strongly pressed that as this is a general act and there is no express repeal of, or specific reference to, the earlier special acts relating to the lands within the Park, it should not be regarded as yielding the jurisdiction which the earlier acts reserved to the State. But we find that the administrative construction is to the contrary. The administration of the Park was placed with the War Department and it appears from its files that on July 14, 1930, upon a review of the pertinent legislation, the Judge Advocate General gave an opinion that the Act of 1927 `vests exclusive jurisdiction in the United States over that part of the Chickamauga and Chattanooga National Military Park located within the State of Georgia\' and that violations of law occurring on the ceded lands are enforceable only by the proper authorities of the United States. As this administrative construction is a permissible one we find it persuasive and we think that the debated question of jurisdiction should be settled by construing the Act of 1927 in the same way."

The Secretary of War, in his letter of November 4, 1943, prefaced his acceptance of jurisdiction over all lands acquired by the United States for military purposes within the State of South Carolina by a reference to the cession laws of the State of South Carolina deemed by him pertinent and which permitted the assumption of exclusive federal jurisdiction. This letter was received by the Governor of the State of South Carolina and it does not appear that there was any objection by him to any portion thereof. The administrative construction placed upon the Georgia statute considered in Bowen was found by the...

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