United States v. Marcello, Cr. No. 19234.

• Decision Date: 09 March 1962
• Docket Number: Cr. No. 19234.
• Parties: UNITED STATES of America v. Carlos MARCELLO.
• Court: U.S. District Court — Eastern District of Louisiana

202 F. Supp. 694

UNITED STATES of America v. Carlos MARCELLO.

Cr. No. 19234.

United States District Court E. D. Louisiana, New Orleans Division.

March 9, 1962.

G. Wray Gill, New Orleans, La., Michel A. Maroun, Shreveport, La., Jack Wasserman, Washington, D. C., for petitioner.

Kathleen Ruddell, U. S. Atty., Peter E. Duffy, Asst. U. S. Atty., New Orleans, La., Maurice A. Roberts, Attorney, Department of Justice, Washington, D. C., for the United States.

AINSWORTH, District Judge.

By a proceeding by petition in the nature of a writ of coram nobis petitioner seeks to have this court vacate and set aside a narcotics conviction and sentence, the full term of which has long since been served. This petition is filed in the original criminal docket numbered case in which petitioner was originally convicted.

On April 25, 1938 petitioner was indicted on two counts in this court for making transfers of marihuana, on December 6, 1937 and December 15, 1937, in violation of the Marihuana Tax Act of 1937, 26 U.S.C.A. § 4741 et seq.

On May 2, 1938 petitioner pleaded "not guilty." On October 29, 1938 he withdrew his plea of "not guilty" and pleaded "guilty" to both counts. He was convicted on his plea of "guilty" and sentenced to one year and one day to a federal penitentiary. This conviction is the basis for a deportation order presently pending against petitioner by the United States.

Petitioner alleges in his petition that at the time of conviction and sentence he was not represented by counsel and that he did not waive such right, in violation of his constitutional rights under the Sixth Amendment of the U. S. Constitution. He further alleges that he was not guilty of the crime of violating the Marihuana Tax Act of 1937 and that he was entrapped into making the aforesaid transfers by an agent of the U. S. Bureau of Narcotics.

The United States has filed a motion to dismiss the petition for writ of coram nobis, relying on the record in this case, the pertinent parts of which are this court's minute entry of October 29, 1938 and the judgment and commitment of the same date bearing the signature of the presiding judge (who is now deceased), both of which documents affirmatively show that Marcello appeared in person and by counsel. Oral argument has been heard and briefs submitted on the motion. It is the Government's position that the sworn allegation of petitioner that he appeared without counsel is insufficient to show that the recitals of the judgment are incorrect, and that unless he comes forward with specific allegations which would be sufficient, if proved, to warrant the court to conclude that the record is erroneous and to correct the record, the court is entitled to give that record conclusive effect, and deny a hearing.

The Government cites United States v. Sturm, 7 Cir., 180 F.2d 413, 414, cert. den. 339 U.S. 986, 70 S.Ct. 1008, 94 L. Ed. 1388, as authority for its motion to deny a hearing on the petition for writ. In the cited case petitioner's motion, apparently based upon Section 2255, Title 28 U.S.C.A., was denied. There the court said that the motion, however, "although replete with legal conclusions, wholly fails to aver the facts upon which those conclusions are, of necessity, founded." In the instant case petitioner has alleged that he was not represented by counsel nor did he waive counsel at the time of sentence. On the hearing of the Government's motion to dismiss the petition petitioner's counsel stated that if a hearing is ordered they would produce witnesses who were present in court at the time of the plea and sentence and who would testify that petitioner was not represented by counsel and that he was not given the opportunity by the court to waive representation by counsel.

The Government also contends that coram nobis is a civil remedy and broad discovery, as in other civil cases, should be permitted against petitioner prior to granting a hearing. Petitioner opposes discovery and avers that coram nobis, as used here, is criminal in nature; therefore, that discovery is not authorized.

Writs of coram nobis were abolished by the framers of the Federal Rules of Civil Procedure when they adopted Rule 60(b), 28 U.S.C.A.¹ The remedy provided for by 28 U.S.C.A. § 2255, a civil remedy,² is not applicable in the present case because petitioner is not in custody, having already served the full term of his sentence. Thus, coram nobis is available to petitioner as a result of the All Writs Section, 28 U.S.C.A. § 1651(a), which authorizes issuance of writs of coram nobis with respect to criminal judgments³.

The present petition for a writ in the nature of coram nobis docketed in the original criminal proceeding in this matter in which petitioner was convicted and sentenced, is a step in a criminal proceeding. Since Rule 60(b) of the Federal Rules of Civil Procedure expressly abolishes writs of coram nobis in civil proceedings, discovery thereunder is not authorized here.

In his petition petitioner has alleged that he appeared in open court on the day of his conviction without an attorney and changed his plea from "not guilty" to "guilty" and did not waive such right, thereby being deprived of his constitutional rights under the Sixth Amendment. Before proceeding further petitioner will be required to amend his petition and to set forth a full disclosure of the specific facts relied on for his petition for writ of coram nobis; otherwise, the petition will be denied. Hysler v. State of Florida, 315 U.S. 411, 316 U.S. 642, 62 S.Ct. 688, 86 L.Ed. 932 (1942); Stephens v. United States, 10 Cir., 1957, 246 F.2d 607; United States v. Tribote, 2 Cir., 1961, 297 F.2d 598, 601.⁴

Upon compliance with the court's order and the amending of his petition to show the specific allegations of fact and to give it full disclosure in his amended petition, it will be the court's duty to hold a hearing on the petition, as due process of law requires⁵.

The court will reserve judgment for future determination on the Government's motion to dismiss petitioner's petition for writ of coram nobis⁶.

IT IS ORDERED that petitioner amend his petition for writ of coram nobis and make a full disclosure of the specific facts relied on in support thereof within ten days from receipt of the order herein; the Government to answer within ten days of receipt of the amended petition. Upon satisfactory compliance by petitioner with this order a hearing will be held on the issue of whether or not petitioner was represented by counsel or waived counsel on ...