United States v. McGann
| Decision Date | 14 June 1957 |
| Docket Number | No. 282,Docket 24065.,282 |
| Citation | 245 F.2d 670 |
| Parties | UNITED STATES of America, Appellee, v. Clarence Duke McGANN, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul W. Williams, U. S. Atty. for Southern District of New York, New York City (Mark F. Hughes, Jr., and Maurice N. Nessen, Asst. U. S. Attys., New York City, of counsel), for appellee.
Clarence D. McGann, pro se.
Before CLARK, Chief Judge, and MEDINA and HINCKS, Circuit Judges.
The record indicates that appellant McGann and two associates, Henry John Foster and Earl Kill Smith, pleaded guilty in the United States District Court for the Southern District of New York on June 28, 1955, to the charge of robbing a bank in the Harlem section of New York City on August 12, 1954, in violation of 18 U.S.C. § 2113. He had previously pleaded guilty in the United States District Court for Maryland to the charge of robbing a bank there on August 13, 1954, the day after the robbery in Harlem. McGann was sentenced to twenty years' imprisonment for the crime committed in Maryland, and at the same time, upon further pleas of guilty, there were imposed two additional five-year sentences for other crimes, including the interstate transportation of the stolen automobile that was used in both robberies, the five-year sentences to be served concurrently with the twenty-year sentence. On August 3, 1955, in the Southern District of New York, McGann, along with his two confederates who had also pleaded guilty, was sentenced by Judge Ryan to twenty years' imprisonment, the sentence to be served concurrently with the sentences imposed in Maryland. It is this sentence imposed by Judge Ryan that is presently under attack. At the time he pleaded guilty on June 28, and when the sentence was imposed on August 3, 1955, McGann was represented by his counsel, Samuel W. Altman, Esq., a lawyer with many years' experience at the federal criminal bar, who had been appointed by Judge Leibell to represent appellant.
On August 11, 1955, eight days after the imposition of sentence, appellant filed a "Petition for Writ of Habeas Corpus," in which he alleged "that his plea of guilty to an untrue bill was made under undue duress and hardship and a direct violation of your petitioners constitutional rights." The petition was denied without a hearing by Judge Herlands on September 13, 1955. Appellant did not appeal.
On December 12, 1955, appellant filed a "Motion to Withdraw Plea of Guilty under 32(d) of the Rules of Criminal Procedure 18 U.S.C." in which he alleged, inter alia, "That said plea was made under undue influence and cocercion by my Court appointed counsel, namely Samuel B. Altman."1 On December 19, 1955, the motion was denied by Judge Murphy, again without a hearing, and again appellant took no appeal.
On January 30, 1956, appellant filed his third post-conviction motion attacking the validity of his sentence. In his "Petition for Writ of Habeas Corpus to Set Aside Sentence and Grant a New Trial" under 28 U.S.C. § 2255 and the accompanying "Brief," he alleged "that his plea of Guilty was made under Duress and Cocercion in violation of his constitutional rights," and that These assertions by appellant are in conflict with affidavits filed in this proceeding by his former court-appointed lawyer and the prosecutor. On February 7, 1956, Judge Clancy endorsed the moving papers as follows: There had been no hearing. Appellant's present appeal is from this order by Judge Clancy.
We find no occasion to comment on the merits of appellant's claim of infringement of constitutional rights in connection with the New York conviction and sentence, because 28 U.S.C. § 2255 is of no avail unless the prisoner is "claiming the right to be released." As the Supreme Court pointed out in United States v. Hayman, 342 U.S. 205, at page 219, 72 S.Ct. 263, at page 272, 96 L.Ed. 232:
"* * * the history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. * * * the sole purpose was to...
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