Wainwright v. United States

• Citation: 289 F. Supp. 820
• Decision Date: 10 July 1968
• Docket Number: Civ. A. No. 5577.
• Parties: Percy Ewell WAINWRIGHT v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Tennessee

289 F. Supp. 820

Percy Ewell WAINWRIGHT v. UNITED STATES of America.

Civ. A. No. 5577.

United States District Court E. D. Tennessee, N. D.

July 10, 1968.

Thomas W. Thomson, Knoxville, Tenn., for plaintiff.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., for defendant.

MEMORANDUM

ROBERT L. TAYLOR, Chief Judge.

The petitioner, Percy Ewell Wainwright, seeks a vacation of the sentence imposed upon him on February 24, 1964, for violation of portions of the National Firearms Act, 26 U.S.C. §§ 5841, 5851 and 5862. The basis of the petition is that the statute under which he was prosecuted violates the Fifth Amendment privilege against self-incrimination and is, therefore, unconstitutional.

Petitioner's motion to vacate was previously denied in a "Memorandum and Order" rendered on July 7, 1966. He appealed and on May 17, 1968 the Court of Appeals ordered the judgment of this Court vacated and the case remanded for further proceedings consistent with Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (January 29, 1968). This Court was directed to consider whether petitioner raised a self-incrimination defense, and also the applicability of Haynes, supra, to convictions prior to January 29, 1968.

We were advised by counsel for the petitioner and the Assistant District Attorney in a hearing held on June 17, 1968 that petitioner was released from prison on the 28th day of May, 1968. His attorney, Thomas Thompson, Esq., and the Clerk of this Court wrote letters to him but each letter was returned.

It is the contention of the Government that the proceeding under Title 28 U.S. C. § 2255 is a collateral attack upon the judgment of the trial court and that errors that could have been raised in the trial proceedings and on appeal by direct attack cannot be raised by indirect attack in this proceeding. Petititioner did not raise the self-incrimination defense before the trial court, although he testified and explained in detail how the unregistered gun described in the indictment was made.

The Government further contends that petitioner's voluntary testimony, including the admission of his manufacture and possession of the gun, constituted a waiver of the privilege against self-incrimination. Leary v. United States, 392 F.2d 220 (C.A.5, 1968).

In Haynes, supra, the defendant was charged with violation of 26 U.S.C. §§ 5841 and 5851. The Supreme Court reversed the conviction, holding that "a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851."

The controlling question presented to the Court on remand is whether the Haynes decision should apply retrospectively. We hold that Haynes does not apply retrospectively.

One of the leading Supreme Court decisions discussing retrospective application is Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), which held that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), did not apply retrospectively. The Court, after discussing several theories of retrospective application, stated:

"Under our cases it appears (1) that a change in law will be given effect while a case is on direct review, Schooner Peggy, United States v. Schooner Peggy, 1 Cranch. 103, 2 L.Ed. 49, supra, and (2) that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set `principle of absolute retroactive invalidity' but depends upon a consideration of `particular relations * * * and particular conduct, * * * of rights claimed to have become vested, of status, of prior determinations deemed to have finality'; and `of public policy in the light of the nature both of the statute and of its previous application.' Chicot County Drainage Dist. v. Baxter State Bank, supra, 308 U.S. 371 at 374, 60 S.Ct. 317, 84 L.Ed. 329."

* * * * * *

"Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective. And `there is much to be said in favor of such a rule for cases arising in the future.'"

The Court then set forth a test which has been cited and followed in subsequent cases:

"* * * we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, `We think the Federal Constitution has no voice upon the subject.'

"Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. * * *"

The rule is further explained at 21 C. J.S.—Courts—194:

"Resolution of the issue requires the court to weigh merits and demerits in each case by looking to prior history of the rule in question, purpose and effect, and whether retrospective operation would further or retard its operation, and inquiry must be directed at the purposes of the new doctrine, the reliance placed on the old law or doctrine, and the effect on the administration of justice of a retroactive application."

The Court, in applying its test to the Mapp case, supra, stated:

"We believe that the existence of the Wolf doctrine prior to Mapp is `an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.' Chicot County Drainage Dist. v. Baxter State Bank, supra, 308 U.S. at 374, 60 S.Ct. at 319. The thousands of cases that were finally decided on Wolf cannot be obliterated. The `particular conduct, private and official,' must be considered. Here `prior determinations deemed to have finality and acted upon accordingly' have `become vested.' And finally, `public policy in the light of the nature both of the * * * Wolf doctrine and of its previous application' must be given its proper weight. * * *"

* * * * * *

"* * * Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. See, e. g., Rea v. United States, supra 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233. We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. Nor would it add harmony to the delicate state-federal relationship of which we have spoken as part and parcel of the purpose of Mapp. Finally, the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late."

* * * * * *

"* * * Again and again this Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule. In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims."

"Finally, there are interests in the administration of justice and the integrity of the judicial process to consider. To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice."

The Court then recognized that it had applied decisions retrospectively in three areas: coerced confessions, the requiring of the state to furnish transcripts of the trial to indigents on appeal, and the right to counsel at trial. It is noted that the question in the present case is not even remotely connected with any of the three areas. The Court then said:

"* * * in each of the three areas in which we have applied our rule retrospectively the principle that we applied went to the fairness of the trial —the very integrity of the fact-finding process. Here, as we have pointed out, the fairness of the trial is not under attack. All that petitioner attacks is the admissibility of evidence, the reliability and relevancy of which is not questioned, and which may well have had no effect on the outcome."

Another leading case is Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), where Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) was held not to apply retrospectively. The Tehan case seems to be more directly in point with the present case since it also involved a self-incrimination question (comment by the prosecutor or judge on defendant's failure to testify). The Court stated:

"* * * we take as our starting point Linkletter's conclusion that `the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective,' that there is `no impediment —constitutional or philosophical—to the use of the same rule in the constitutional area where the exigencies of the situation require such an application,' in short that `the Constitution neither prohibits nor requires retrospective effect.'"

Tests laid down in the Linkletter decision, supra, were discussed and holdings on the involved question for a fifty-year period traced. The Court, in discussing the "purpose" of the privilege against self-incrimination, said:

"Insofar as these `purposes' of the Fifth Amendment privilege against compulsory self-incrimination bear on the question before us in the present case, several considerations become immediately

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