United States v. Newman

Decision Date30 November 1954
Docket NumberCrim. No. 77483-77486.
Citation126 F. Supp. 94
CourtU.S. District Court — District of Columbia

Leo A. Rover, U. S. Atty., Alexander L. Stevas, Asst. U. S. Atty., Washington, D. C., for plaintiff.

Andrew W. Carroll, Washington, D. C., for defendant.

LAWS, Chief Judge.

Pursuant to statute, 28 U.S.C. § 2255, defendant has moved to vacate pleas of guilty entered on December 16, 1946, in the above-entitled cases, to vacate sentence, to award a new trial, and for a writ of habeas corpus ad testificandum to be heard in oral testimony in support of this motion. He alleges the pleas of guilty were not voluntarily made, but were induced by coercion, fear, and misconduct of his counsel and the District Attorney.

The Court must first determine whether it shall require the presence of defendant who is presently incarcerated at Alcatraz, California. Defendant's able counsel appointed by the Court argues defendant's allegations create substantial issues of facts as to events in which the prisoner participated, and under the decision of United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, defendant is entitled as a matter of right to be present at a hearing on the motion. The prosecution argues this is a second or successive motion for similar relief which under the statute need not be entertained, and in addition adverts to the risks in transferring across the breadth of the country for hearing a dangerous prisoner who has once unsuccessfully sought to escape.

Section 2255 was enacted, as Chief Justice Vinson observed in the Hayman case in an extensive review of the history of the section, to meet practical difficulties in the administration of the habeas corpus jurisdiction of the United States courts. The disadvantages of expense, risk of escape or delivery in transporting prisoners, and the incentive to file baseless motions were considered to be outweighed by the advantages in providing a more convenient forum where records, court officials and witnesses would be readily available. Under Section 2 of the jurisdictional Bill as originally submitted to Congress by the Judicial Conference of the United States, this defendant might have been left to pursue his remedies by habeas corpus in the district of confinement. The memorandum accompanying the letter of transmittal of the Bill by the Judicial Conference stated: "If it appears that it is not practicable for the prisoner to have his motion determined in the trial court because of his inability to be present at the hearing, `or for other reasons', then he has the right to make application to the court in the district where he is confined. Such an instance might occur where a dangerous prisoner, who has been convicted in the Southern District of New York, was confined in Alcatraz Penitentiary." As the Bill finally was enacted into law, however, Section 2255 provides an application for habeas corpus shall not be entertained "unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."

It does not here appear the remedy by motion is inadequate or ineffective. The pleas were entered before this Court. Such records and witnesses as are available would be available to this Court. There would be inherent risks in bringing this prisoner before any court. It appears more practicable that the matter be determined in the Court where the events are alleged to have occurred than in the district of confinement. This being so, the character of defendant as a dangerous prisoner should not affect the determination of the Court whether he shall be brought before the Court to give oral testimony.

Under Section 2255, defendant is entitled to a hearing "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *." While the statute provides "A court may entertain and determine such motion without requiring the production of the prisoner at the hearing", the Hayman case decided, "Where * * * there are substantial issues of fact as to events in which the prisoner participated, the trial court should require his production for a hearing." 342 U.S. at page 223, 72 S.Ct. at page 274.

The instant motion before the Court must be read in the light of the history of the proceedings and allegations of this case. In 1949, more than two years after sentence on the four indictments, a fifth indictment having been dismissed after sentence, defendant first moved to vacate sentence and for writ of habeas corpus ad testificandum. A hearing was held before another judge of the Court in which defendant did not appear but was represented by his counsel, who indicated he was not informed of the petition and was not prepared to ask the Court for any further consideration. The motion was dismissed, and later leave to proceed on appeal without prepayment of costs was denied as not taken in good faith, filed after the time to appeal had expired. A petition to proceed in forma pauperis on appeal was denied by the United States Court of Appeals for the District of Columbia Circuit, and a letter filed as a petition for reconsideration was again denied by written opinion. Newman v. United States, 1950, 87 U.S. App.D.C. 419, 184 F.2d 275, certiorari denied 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665.

In July, 1952, defendant again filed a motion for writ of habeas corpus ad testificandum and a motion to withdraw the pleas of guilty, which were denied, but defendant was granted leave to proceed on appeal without prepayment of costs. On appeal, counsel was appointed for defendant who moved to remand for hearing before this Court or to dismiss without prejudice to renewal of a motion under Section 2255, counsel being of opinion, because of the vagueness of the allegations, the record was not in condition for a proper consideration. Over objection of the Government, the appeal was dismissed without prejudice to renewal in this Court of a motion under Section 2255. Counsel was appointed by this Court to...

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6 cases
  • Smith v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 7, 1959
    ...1956, 234 F.2d 219, 221, certiorari denied 352 U.S. 899, 77 S.Ct. 140, 1 L.Ed.2d 90, and Chief Judge Laws' opinion in United States v. Newman, D.C.D.C.1954, 126 F.Supp. 94.3 In short, the refusal of the court to entertain the motion was judicial action subject to judicial review under the t......
  • Bistram v. United States
    • United States
    • U.S. District Court — District of South Dakota
    • February 8, 1960
    ...424, certiorari denied 358 U.S. 847, 79 S.Ct. 72, 3 L.Ed.2d 81; Donovan v. United States, 10 Cir., 1953, 205 F.2d 557; United States v. Newman, D.C.1954, 126 F.Supp. 94." (Emphasis The petitioner Bistram at the time of the plenary hearing granted him on one of his Sec. 2255 motions was give......
  • Cain v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 6, 1959
    ...424, certiorari denied 358 U.S. 847, 79 S.Ct. 72, 3 L.Ed.2d 81; Donovan v. United States, 10 Cir., 1953, 205 F.2d 557; United States v. Newman, D.C.1954, 126 F.Supp. 94. Cf., Canizio v. People of State of New York, 1946, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545 (coram nobis petition). This c......
  • Tucker v. United States, 15048.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 26, 1956
    ...60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. 5 See, e.g., United States v. Newman, D. C.D.C.1954, 126 F.Supp. 94. 6 Morales v. United States, 1 Cir., 1951, 187 F.2d 518, 7 Cf. 28 U.S.C. §§ 2243, 2246, 2247. ...
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