White v. United States
| Decision Date | 25 September 1972 |
| Docket Number | No. 71-3501.,71-3501. |
| Citation | 470 F.2d 727 |
| Parties | Jammie Don WHITE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jammie Don White, pro se.
William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph Harris, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
Before WISDOM, GODBOLD and RONEY, Circuit Judges.
ON PETITION FOR REHEARING
On September 10, 1970 petitioner pleaded guilty to a Dyer Act violation alleged to have occurred around June 29, 1970. On May 14, 1971 he filed a § 2255 motion asserting these grounds: (1) Erroneous denial of a motion to have him committed for (mental) observation. As part of this ground White alleged that he had been released around the early spring of 1969 from Terrell (Texas) State Mental Hospital against medical advice. (2) Ineffectiveness of counsel in that the court-appointed attorney, knowing of petitioner's background, did not pursue the question of his mental state. (3) Use by the court of an incomplete pre-sentence report in violation of due process.
The sentencing court denied the petition without evidentiary hearing and without findings of fact and conclusions of law, the only finding being that the motion (and other motions made by White) were without merit, and denied a petition for rehearing.
The transcript of the sentencing proceedings reveals that at the time of sentencing there was before the court a motion for a psychiatric examination of White. His counsel called attention of the court to the motion and stated that before the court accepted a plea he wanted it to be aware that White had undergone psychiatric treatment in the past. Counsel gave as his opinion, however, that petitioner was "capable of pleading guilty." The trial court interrogated White who related that he had been committed to Terrell (Texas) State Hospital the preceding year for a "complete nervous breakdown," that he did not know how long he was hospitalized, and that he was not found of unsound mind but "came out against medical advice." The trial judge stated he would pass the matter and obtain a copy of the hospital reports. However, presumably with the aim of disposing of the cases of White and two codefendants at the same time, he changed his mind and there ensued a colloquy of considerable length concerning the facts of the offense, White's past criminal record, whether the vehicle was "stolen" or White merely participated in taking it into Texas when authorized only to take it from California to Arizona. In the process the court asked White whether he "felt that he was competent," and later whether he had any reason to doubt his mental capacity or his ability to assist his lawyer. The matter of obtaining hospital records was abandoned.
We pretermit the question of whether the standards for determining whether a defendant with respect to whom no motion has been filed under 18 U.S.C. § 4244 is competent to enter a plea, are the same as those for determining whether a § 4244 motion should be granted. We have no doubt that the level of competency required to enter a plea must be at least as high as that required to assist in defense, which is the standard of § 4244. In this instance the § 4244 motion was viable and counsel called the court's attention to its existence. The motion was not properly disposed of, requiring a reversal. Known to the court, by the motion itself, as supplemented by factual data brought out in the colloquy, United States v. McEachern, 465 F.2d 833 (5th Cir., 1972), as grounds for belief that White "may be ... so mentally incompetent as to be unable ... to assist in his own defense,"1 was White's recent commitment, the reference to a complete nervous breakdown, his lack of knowledge of the length of the commitment, and the statement that he was released against medical advice....
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...hearing" cannot be conducted in the post-conviction proceedings. Rose v. United States, 513 F.2d 1251 (8th Cir. 1975); White v. United States, 470 F.2d 727 (5th Cir. 1972); Tanner v. United States, 434 F.2d 260 (10th Cir. 1960). In the instant case, a "meaningful" retrospective hearing was ......
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