United States v. Smith

• Decision Date: 21 September 1964
• Docket Number: No. 9219.,9219.
• Citation: 337 F.2d 49
• Parties: UNITED STATES of America, Appellee, v. Alexander Henry SMITH, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

337 F.2d 49 (1964)

UNITED STATES of America, Appellee, v. Alexander Henry SMITH, Appellant.

No. 9219.

United States Court of Appeals Fourth Circuit.

Argued May 1, 1964.

Decided September 21, 1964.

Ronald P. Sokol, Charlottesville, Va. Court-assigned counsel, for appellant.

William Medford, U. S. Atty. (Robert J. Robinson and James O. Israel, Asst. U. S. Attys., on brief), for appellee.

Before HAYNSWORTH and BOREMAN, Circuit Judges, and HUTCHESON, District Judge.

BOREMAN, Circuit Judge.

On February 3, 1961, Alexander Henry Smith signed written waivers of counsel and entered separate pleas of guilty to six indictments and informations charging him with burglarizing three United States Post Offices and forging and uttering a large number of stolen postal money orders.¹ He was sentenced to a total of twenty years' imprisonment. On August 20, 1962, Smith filed a motion to vacate sentence under 28 U.S.C.A. § 2255 alleging in substance that he had not competently waived counsel, that his guilty pleas were involuntarily entered and that he was denied an impartial hearing. Counsel was appointed to represent Smith and on February 28, 1963, a hearing on the motion was held before the Honorable Wilson Warlick, the judge who had imposed sentence. By order of the court, Smith was returned from the federal penitentiary at Leavenworth, Kansas, where he was serving sentence, and testified at some length in support of his allegations. The purport of his testimony was that although he knew that he was entitled to retain counsel of his own choosing, he was not aware that if he indicated his desire for the services of an attorney the court would appoint counsel at no expense to him. Smith also testified that he was led to believe by a United States postal inspector who investigated the case that if he pleaded guilty to the various counts against him certain charges against his half-brother, David Anspach,² (one of Smith's two codefendants in the original proceedings) would be dropped. Smith's testimony was contradicted in material respects by several government witnesses. The transcript of the original proceedings contained only the following statements relative to the issue of waiver of counsel:

"ASST. U. S. ATTY. MONTEITH:

If your Honor pleases, two of these defendants Mr. Smith and Mr. Anspach do not have attorneys, if the Court pleases.

"THE COURT:

Do you both want a lawyer appointed to defend you? Have they signed a release?

"ASST. U. S. ATTY. MONTEITH:

Yes sir. Let the record appear that the defendants have waived counsel by written waiver in open court. Let the record show that they were advised by the Court of their right to have counsel appointed, and they declined to accept counsel tendered by the Court."

The testimony of several witnesses at the hearing of the § 2255 motion indicated that the transcript was incomplete on this point and that it did not contain much of the discussion which took place between the court and Smith, his codefendants and one of his codefendants' counsel. In its memorandum opinion the District Court noted this defect in the transcript:

"Quite frankly it seems that the stenographic notes of the Court Reporter fail to show much of that which transpired at this point. Several statements of the court to petitioner and his associates and their answers thereto seem not to be definitely found in the record. The brevity, less than one page, clearly indicates that a failure came about to actually record the events that took place; thus a recapitulation of the action had has been made necessary. For that reason the hearing was ordered and all effort made to get the truth of that which transpired from those present in court and having a part thereof. * * *"

The court concluded that Smith had knowingly and intelligently waived counsel, that he had voluntarily pleaded guilty with a full understanding of the charges against him and that none of his constitutional rights had been violated; accordingly, it dismissed the motion to vacate sentence.

The principal contention urged by Smith here is with respect to his alleged failure to competently waive counsel. In discussing this issue the District Court, after noting that Smith had previously been advised by the deputy marshal of his right to counsel, stated:

"* * * From my own recollection, my notes made, and that of witnesses who testified in the hearing, I find that the petitioner and Anspach were again fully advised that if they still wanted an attorney, following their statements made on some several occasions prior thereto, that they did not desire counsel, that one would even at that time have been assigned, and made available to them. Here again they stated that neither desired counsel. * * *"

Smith complains that the same district judge who accepted his pleas of guilty and imposed sentence also decided the motion to vacate sentence under 28 U.S. C.A. § 2255. No affidavit of bias or prejudice was filed³ but Smith argues here that the trial judge had an interest in finding that the proceedings were conducted in a constitutional manner which should have disqualified him from passing upon the motion.⁴

In Carvell v. United States, 173 F.2d 348 (1949), this court squarely rejected a similar argument, stating:

"Complaint is made that the judge who tried the case passed upon the motion. Not only was there no impropriety in this, but it is highly desirable in such cases that the motions be passed on by the judge who is familiar with the facts and circumstances surrounding the trial, and is consequently not likely to be misled by false allegations as to what occurred. It was to avoid the unseemly practice of having attacks upon the regularity of trials made before another judge through resort to habeas corpus that section 2255 of Title 28 was inserted in the Judicial Code." Id. at 348-349.

Smith concedes that the decision in the Carvell case is directly in point but argues that it is unsound and should be overruled. We reject this argument. An analysis of section 2255, its legislative history and the cases subsequent to Carvell which have interpreted it, convinces us that one of the primary purposes of that section was to make it possible for the judge to rule upon motions in the nature of habeas corpus petitions attacking the validity and regularity of prior proceedings before him. Section 2255 expressly requires that motions thereunder be addressed to "the court which imposed the sentence."⁵ Prior to the enactment of section 2255 the procedure in habeas corpus litigation in the federal courts contained a number of undesirable features and lent itself to frequent abuse.⁶ The deluge of groundless habeas corpus applications which followed the writ's broadened application by judicial decisions⁷ required the Judicial Conference of the United States to take note of the problems created thereby. The late John J. Parker, former Chief Judge of this court and a member of the panel which subsequently decided the Carvell case, was named chairman of a committee appointed by the Conference to study problems inherent in the habeas corpus procedure and to recommend corrective legislation. One of the chief sources of abuse of the former procedure was the requirement that habeas corpus petitions be filed in the district where the prisoner was confined. In an article entitled Limiting The Abuse of Habeas Corpus, 8 F.R.D. 171, 172-173 (1949), Judge Parker described some of the objectionable consequences of that requirement which section 2255 was designed to eliminate:

"* * * There was no provision for the trial judge to supplement the record or even to furnish a statement as to what had occurred at the trial. If heard at all in the habeas corpus litigation, it was required that he be heard as an ordinary witness. From this resulted the unseemly spectacle of federal district courts trying the regularity of proceedings had in courts of coordinate jurisdiction and of state trial judges appearing as witnesses in defense of the proceedings had in their courts. * * *"

As stated in United States v. Edwards, 152 F.Supp. 179, 182 (D.D.C.1957),⁸ "an intolerable situation developed of having the testimony of the trial judge and the word of a convicted felon pitted against each other. This result was manifestly incompatible with the dignity of the Federal judiciary and did not enhance respect for the courts on the part of evildoers."

The requirement that habeas corpus petitions be filed in the district where the prisoner was confined also gave rise to serious administrative problems. The records and files of the trial court were not readily available from which it could be determined whether petitions were frivolous. Since evidence dehors the record could be presented, it was necessary in many instances that court officials, including the trial judge, be transported to districts far removed from their own, thus seriously interrupting the business of the court in which the original proceedings were had, in order to contradict baseless allegations as to what had transpired at trial. Obviously such a procedure was expensive, cumbersome and highly unsatisfactory.

In view of the large number of districts which then had only one judge, Congress obviously considered it desirable that district judges be required to review proceedings over which they had presided. Several cases in addition to the Carvell case have interpreted section 2255 as authorizing the sentencing judge to entertain and determine motions filed thereunder. See Deitle v. United States, 302 F.2d 116, 118 (7 Cir. 1962); Simmons v. United States, 302 F.2d 71 (3 Cir. 1962); Martin v. United States, 273 F.2d 775, 777 (10 Cir. 1960), cert. denied, 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 816 (1961); United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3 Cir. 1954); Clark v. Memolo, 85 U.S. App.D.C. 65, 174 F.2d 978, 982 (1949); United States v. Edwards, 152 F.Supp. 179 (D.D.C.1957), aff'd, 103 U.S.App. D.C. 152...