Wheeler v. U.S.

• Decision Date: 03 April 1981
• Docket Number: No. 79-2696,79-2696
• Citation: 640 F.2d 1116
• Parties: James W. WHEELER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1116

640 F.2d 1116

James W. WHEELER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 79-2696.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1980.

Decided April 3, 1981.

Daniel Hoyt Smith, Smith, Kaplan & Withey, Seattle, Wash., for petitioner-appellant.

James R. Moore, Asst. U. S. Atty., Tacoma, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington, Tacoma.

Before VAN DUSEN, ^* ANDERSON and BOOCHEVER, Circuit Judges.

VAN DUSEN, Senior Circuit Judge.

In 1974, petitioner Wheeler was convicted of bank robbery and sentenced to 20 years' imprisonment by the district court of the Western District of Washington. Two weeks after sentencing, Judge William N. Goodwin, the trial judge, issued an order directing Wheeler's custodian to prevent Wheeler from communicating with ten named individuals. The judge entered the order without prior notice to Wheeler and without a hearing at which Wheeler was either present or represented.

After Judge Goodwin's death, Wheeler filed this petition pursuant to 28 U.S.C. § 2255 to vacate the post-sentencing order. The district court dismissed the petition. We reverse the district court's order of dismissal and remand to the district court for further proceedings consistent with this opinion.

FACTS ¹

Petitioner Wheeler was convicted of bank robbery after a trial and sentenced to 20 years' imprisonment. During the trial Wheeler admittedly attempted to persuade Donna Joiner to testify in his behalf. ² The allegedly harassing tactics used by Wheeler to persuade Ms. Joiner included several attempts to expose to her family and military superiors certain information that discredited her. Because Wheeler continued in his harassment of Ms. Joiner after the trial was over, she requested protection from the court. On January 6, 1975, approximately two weeks after Wheeler's sentencing, the court ordered "that the Attorney General or his authorized representative duly acting as the custodian of James William Wheeler shall not permit James William Wheeler to telephone or to write to the following individuals: ...." Ten individuals were listed, including relatives of Ms. Joiner and several of her commanding officers. Petitioner was not provided notice that Ms. Joiner was seeking the court's protection, was not present when the court issued the order, and was not formally notified of the order within a reasonable time after it was issued. ³ Apparently, Wheeler was first formally notified of the order in March 1979, over four years after it was issued.

Wheeler filed this petition to vacate the order under 28 U.S.C. § 2255 on June 12, 1979, approximately three months after receiving such formal notification. At the time of filing, Wheeler was incarcerated at the Federal Correctional Institution at Lompoc, California. Wheeler has since been moved to the United States Penitentiary, Leavenworth, Kansas, where he is currently imprisoned.

The district court referred Wheeler's petition to a magistrate who recommended that the petition be denied. The magistrate found: the trial court has the inherent power to protect witnesses; the protection of witnesses is an important and substantial

governmental interest; and this substantial governmental interest justified the restrictions placed on Wheeler's mailing privileges under the authority of Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (Excerpt, p. 9). The district court adopted the magistrate's recommendation and ordered the dismissal of the petition under 28 U.S.C. § 2255 on July 26, 1979 (Excerpt, p. 7).

JURISDICTION

We raise, as we must, the question of the district court's jurisdiction to pass on the merits of Wheeler's petition. ⁴ The district court, we assume, asserted jurisdiction under 28 U.S.C. § 2255, which provides in part:

"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."

Wheeler filed his § 2255 petition in the District Court for the Western District of Washington, the court in which he was tried and sentenced.

Wheeler's petition, however, does not attack the sentence imposed; ⁵ rather, the petition attacks the post-sentencing order restricting his mail privileges. The contested order, unlike a sentence, was not issued on a judgment of sentence form, was not a result of petitioner's conviction for bank robbery, and was issued two weeks after petitioner was sentenced to 20 years' imprisonment. Nevertheless, the effect of the order has been to impose an additional restriction on Wheeler while serving his sentence.

The Supreme Court in United States v. Hayman, 342 U.S. 205, 210-19, 72 S.Ct. 263, 267-72, 96 L.Ed. 232 (1952), discusses at some length the practical reasons why different types of cases should be heard in different districts. A district court that happened to be located where there was a federal penitentiary with thousands of prisoners would be overwhelmed with habeas petitions, while other districts would get none. Section 2255 evens the load among the district courts. Also, the type of actions that may be brought under § 2255 would ordinarily be of the type that would require the presence of witnesses and old records that would be located where the petitioner was tried and sentenced; not where the petitioner is confined.

This case is something of a hybrid. Wheeler is challenging actions of the warden, which would seem to bring it within § 2241 (see notes 6 and 7), yet the warden's action is being imposed by an order of the sentencing court in Washington. Because the events that led up to the judge's order took place in Washington, a remand there, where the records and witnesses would be more available, is in conformity with the purposes Congress had in enacting § 2255. While the order is not, strictly speaking, a sentence, its effect is to add an additional condition to Wheeler's sentence. We hold that, for the purposes of § 2255, the order should be considered as the equivalent of a sentence.

Before concluding that jurisdiction under § 2255 was proper, we considered several alternative means by which Wheeler could obtain federal judicial review of the contested order. The Government contends Wheeler's complaint should be filed in the Kansas district court pursuant to 28 U.S.C.

                § 2241.  6 Wheeler proposes that his petition should be addressed by the Washington district court as either a 28 U.S.C. § 2241 petition, 7 a Bivens -type action filed pursuant to 28 U.S.C. § 1331, 8 or a writ of mandamus.  9 For the reasons set out in notes  
                6-9, none of these methods of obtaining review is appropriate in this case
                

The reason none of the suggested approaches offers the appropriate means of review lies in the extremely unusual and highly irregular nature of the order itself and the circumstances of its issuance. Neither the parties nor this court has been able to unearth any substantially similar case. ¹⁰ Assuming the facts as alleged are true, ¹¹ the trial judge issued the order, not before or during trial, but after sentencing Wheeler. Generally, the trial judge has no authority over the defendant once sentence has been entered. See United States v. Huss, 520 F.2d 598 (2d Cir. 1975) (power of sentencing court after sentence entered is limited to those areas expressly provided by Congress). Furthermore, by entering the order after sentencing, the trial judge interfered with the executive branch's province of prison administration in violation of the separation of powers principle. See Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), discussed infra at part II. Assuming the facts as alleged are true, prior to the entry of the order restricting Wheeler's fundamental and highly protected First Amendment rights, Wheeler should have been provided with notice and an opportunity to be heard. In almost every instance where First Amendment rights are to be restricted, notice and a hearing must be provided to the one whose rights are to be limited. Carroll v. Princess Anne, 393 U.S. 175, 180, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968), discussed infra at part I. Here, Wheeler not only had no prior notice, he never received formal notification even after the order was issued. ¹² This failure to notify precluded Wheeler from appealing the order. As the facts stand before us, it appears that Wheeler received his first formal notice of the order on or about March 21, 1979, over four years after it was issued. Conceivably, because the order was directed to the warden, and not Wheeler, the warden could have been opening and inspecting Wheeler's mail for four years without Wheeler's knowledge.

Congress, not surprisingly, did not contemplate such an extraordinary set of circumstances when it considered what judicial decisions were to be subject to collateral attack. In light of the broad powers granted the district courts by the Federal Rules, habeas corpus statutes, and other jurisdictional legislation, we conclude that Congress did not intend to preclude collateral attack on an order such as the one presented here. This conclusion is especially justified where, as here, petitioner could not have appealed the order if he was never notified of it. To strictly and literally apply the jurisdiction-granting statutes so as to withhold jurisdiction from the district court "is so shocking to the sense of justice that ... it is the duty of the court to (refuse the strict application of the statute) in the interest of the Government itself, to protect it from the (possible) illegal conduct of its officers and preserve the purity of its courts ...." Sorrells v....