United States v. Marchese

• Decision Date: 04 March 1965
• Docket Number: No. 19172,19249.,19172
• Citation: 341 F.2d 782
• Parties: UNITED STATES of America and Preston Smith, Warden of United States Correctional Institution at Terminal Island, California, Appellants, v. Michele MARCHESE, Appellee. UNITED STATES of America and R. W. May, Warden of United States Correctional Institution at Terminal Island, California, Appellants, v. Jesse DEL BONO, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

341 F.2d 782 (1965)

UNITED STATES of America and Preston Smith, Warden of United States Correctional Institution at Terminal Island, California, Appellants, v. Michele MARCHESE, Appellee.

UNITED STATES of America and R. W. May, Warden of United States Correctional Institution at Terminal Island, California, Appellants, v. Jesse DEL BONO, Appellee.

Nos. 19172, 19249.

United States Court of Appeals Ninth Circuit.

February 10, 1965.

Rehearing Denied March 4, 1965.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Crim. Sec., J. Brin Schulman, Asst. U. S. Atty., Los Angeles, Cal., for appellants.

Burton Marks, Beverly Hills, Cal., for appellee Michele Marchese.

Russell E. Parsons, Los Angeles, Cal., for appellee Jesse Del Bono.

Before BARNES, JERTBERG and DUNIWAY, Circuit Judges.

BARNES, Circuit Judge.

I — The History.

The history of this extraordinary combined matter is this:

(1) On June 16, 1958, appellees were each convicted following a jury trial for violation of 18 U.S.C. § 371 and 21 U.S.C. § 174 — sale of more than two pounds of heroin.

(2) The judgments of conviction were affirmed by this court per curiam on April 15, 1959, 264 F.2d 892.

(3) Petitions for certiorari were denied by the United States Supreme Court — Marchese v. United States, 360 U.S. 930, 79 S.Ct. 1447, 3 L.Ed.2d 543 (1959); Del Bono v. United States, 360 U.S. 938, 79 S.Ct. 1463, 3 L.Ed.2d 1550 (1959).

(4) Marchese and then Del Bono filed motions to annul, vacate and set aside their judgments of conviction under the provisions of 28 U.S.C. § 2255 (Marchese, Clk's Tr. p. 98; Del Bono, Clk's Tr. p. 24). Both were denied on December 22, 1960 by the Honorable Thurmond Clarke, the same judge who had tried the appellees earlier. No appeal was taken by either appellee.

(5) On February 3, 1961, each filed motion for reconsideration of the court's order denying the § 2255 motions. On March 14 and 15, 1961, each was again denied.

(6) On June 20, 1961, Marchese filed a petition for a writ of habeas corpus. This was denied by another district court judge, the Honorable Peirson M. Hall. Marchese appealed, and this court affirmed that denial. (304 F.2d 154 (1962).)

(7) Marchese then filed a petition in the United States Supreme Court for a writ of certiorari.

(8) Del Bono had meanwhile filed a new motion under 28 U.S.C. § 2255, which was denied by Judge Thurmond Clarke on December 27, 1961. No appeal was taken.

(9) The United States Supreme Court granted Marchese's petition for certiorari, and remanded the case to the district court for "reconsideration in the light of Sanders v. United States, 373 U.S. 1 83 S.Ct. 1068, 10 L.Ed.2d 148."

II — "Sanders v. United States."

We thus are required first to consider what the Supreme Court meant when it "remanded for reconsideration, in light of Sanders v. United States," supra.

Sanders, when charged with robbing a federally insured bank, declined assistance of counsel, signed a waiver of indictment, pleaded guilty, and was sentenced to imprisonment. When he subsequently filed a § 2255 motion, he charged the indictment was invalid, that he had been denied assistance of counsel, and that he had been coerced into his plea of guilty. This motion was denied without a hearing, upon the ground the allegations were conclusionary (i. e., lacked facts upon which conclusions could be based) — although the court added that the files and records showed conclusively that petitioner was entitled to no relief.

Sanders later filed a second § 2255 motion, alleging that at the time of his trial and sentence he had been mentally incompetent as a result of narcotics administered to him while in jail, and alleging specific fact in support of his claim. This second motion was denied without a hearing on the ground that his alleged mental incompetency could have, and should have been raised, at the time of his first motion.

On appeal from the district court's ruling on Sanders' second 2255 motion, this court affirmed in a per curiam decision. Sanders v. United States, 297 F.2d 735 (1961). We noted that § 2255 provides that a second or successive motion for similar relief need not be entertained; that Sanders asked for "similar relief" (to set aside and vacate the sentence) and that § 2255 allowed the trial judge to exercise a reasonable discretion in determining whether Sanders in his first motion could and should not have specified his alleged mental incompetency from use of drugs at the time of his sentence. The Supreme Court noted our reasons for so ruling by quoting from our opinion (373 U.S. 6, 83 S.Ct. 1068). It then reversed this court, holding that the second motion should have been heard.

As we read the Supreme Court's decision, our affirmance of the denial was erroneous because, both at common law and by the very nature of the writ of habeas corpus, res adjudicata is inapplicable to such writs, provided no abusive use of the writ can be demonstrated. Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924). The Supreme Court held that the language "similar relief" used in § 2255 "cannot be taken literally" (373 U.S. 13, 83 S.Ct. 1068), but must be read as the material equivalent of § 2244. This section provides that a judge need not consider a petition for habeas corpus "if it appears that the legality of such detention has been determined * * * on a prior application * * * and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry." Thus alleging a previously unraised ground for such a writ ordinarily entitles a petitioner to a hearing on such new allegations. Mr. Justice Brennan, in the second part of his opinion in Sanders, lays down certain rules to govern the hearing of § 2255 applications:

(a) Where the second or successive application is shown, on the application, files and records of the case alone, to be conclusively without merit, the application should be denied without a hearing.

"Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief note only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." (373 U.S. at 15, 83 S.Ct. at 1077.) (Emphasis added by this court.)

(b) The court then defines and gives helpful examples of the meaning of the terms "ground," "adjudication on the merits," and "the ends of justice."

(c) It also points out that if a different ground is raised, "no matter how many prior applications for federal collateral relief a prisoner has made," it cannot be considered "the same ground," as used in (a) above, but that "if a prisoner deliberately withholds for example one of two grounds for federal collateral relief," or abandons his ground, equitable principles require a finding that there exists an abuse of the remedy. Fay v. Noia, 372 U.S. 391 at 438-40, 83 S.Ct. 822, 9 L.Ed.2d 837, and Townsend v. Sain, 372 U.S. 293 at 317, 83 S.Ct. 745, at 9 L.Ed.2d 770 (second case).

(d) And as a final caution, the Court says:

"The principles governing both justifications for denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power — and, if the ends of justice demand, the duty — to reach the merits." (373 U.S. at 18-19, 83 S.Ct. at 1079.)

Finally, the Court in Sanders ordered the remand, and a hearing of the motion (p. 20, 83 S.Ct. 1068).

There obviously exists a considerable difference of opinion between counsel for the parties before us as to what the Supreme Court did or did not hold with respect to this petitioner's rights.

Appellee Marchese's counsel, in seeking favorable action before Judge Clarke, asserted "that the Supreme Court would not have granted certiorari if it had not agreed with at least some, if not all, of the grounds raised in the petition for the writ of habeas corpus." (Marchese v. United States, Clk's Tr. p. 82.) In appellee Marchese's brief before us (with new counsel appearing for him), we are urged to believe:

"The Supreme Court * * * granted certiorari * * * and we submit that the Supreme Court\'s decision effectively, completely and finally disposes of appellant\'s contentions herein." (Marchese, Reply Br. p. 8.)

On the other hand, the appellant United States states in its opening brief (p. 4, n. 6), with respect to the granting of certiorari:

"There was nothing in this decision which ordered the district court to grant a hearing to Marchese, or which suggested that the Supreme Court felt there was any merit to the petition * * *. In Sanders * * * the court * * * exempted its decision from those cases * * * `where the second or successive application is shown * * * conclusively to be without merit. In such a case * * * the application should be denied without a hearing.\'"

We cannot completely agree with either position, whether we consider a district court's examination of the "application, files and records of the case `only' a hearing," or not a hearing, the Supreme Court remanded the case with a purpose in mind, and we read that purpose as telling this court that there must be a determination by the district court of the charges made by petitioner Marchese. We doubt, however, if the Supreme Court intended to pass on, or to infer that it intended to pass on, the merits of...