Albert Seidner v. United States

260 F.2d 732

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 17, 1958
• Docket: 14133_1
• Status: Published

Opinions

PER CURIAM.

This is an appeal from the District Court’s denial, without hearing, of two motions, one for a new trial on the basis of newly discovered evidence, the other to vacate sentence under 28 U.S.C. § 2255. Neither motion alleged any ground upon which relief could be granted. Upon receiving a letter from appellant which indicated he was incarcerated in a mental institution run by the Bureau of Prisons and after examining the records, this court appointed a member of the bar as amicus curiae to file a memorandum. This memorandum raised for the first time a question as to whether appellant had been mentally competent at the time of his trial.

In response to a show cause order which this court issued after considering the amicus memorandum, the Director of Prisons stated that he had examined the report made by the Lewisburg Prison Board of Examiners of its psychiatric examination of appellant, an examination made six and one-half months after sentence on a guilty plea. The Director found therein no probable cause to believe that appellant was mentally incompetent at the time of his plea. See 18 U.S.C. § 4245. However, the present state of the record suggests it is possible that there is some question concerning appellant’s competency to stand trial.

If appellant was incompetent when he pleaded guilty, the sentence must be vacated. Lloyd v. United States, 1957, 101 U.S.App.D.C. 116, 247 F.2d 522. Appellant, however, rejects the idea he may have been incompetent. Despite his protests, we hold that the issue of competency is cognizable under appellant’s § 2255 motion by virtue of the amicus memorandum; the former should, in the peculiar circumstances of this case, be read to include the latter, for purposes of raising the issue of mental eompetenee.¹ Accordingly we remand in order that the District Court may now determine whether the issue of competency requires that the sentence be vacated as in Kelley v. United States, 1954, 95 U.S.App.D.C. 267, 221 F.2d 822, conviction at new trial reversed on other grounds, 1956, 99 U.S.App.D.C. 13, 236 F.2d 746, or whether on the other hand a determination of appellant’s competency can be made nunc pro tunc, as in Lloyd v. United States, supra; Wells v. United States, 1956, 99 U.S.App.D.C. 310, 239 F.2d 931; Gunther v. United States, 1954, 94 U.S.App.D.C. 243, 215 F.2d 493, subsequent competency determination reversed for improper procedures, 1956, 97 U.S.App.D.C. 254, 230 F.2d 222.

If the court determines that a nunc pro tunc competency determination will be adequate under the circumstances, it should then proceed to resolve the issue and make such a determination. Should it then determine upon adequate evidence that appellant was competent at the time of his trial, the motion to vacate sentence should be denied, otherwise it should be granted.

We are not unmindful of the difficulties which will confront the District Court and counsel on remand; among other things it may be assumed that appellant will not knowingly assist counsel in any effort to prove lack of competence at the time of trial. Nevertheless, it seems to us that the District Court must be allowed to deal with the problem in the first instance, exercising sound judicial discretion to resolve the problems of procedure, order of proof and burden of proof with such limited guidance as ¡has heretofore been made available. See Fooks v. United States, 1956, 100 U.S.App.D.C. 348, 246 F.2d 629. The objective must be to achieve fundamental fairness bearing in mind that rigid rules of procedure, or evidence, or order of proof, will not always best serve the interests of substantial justice when applied to a post-conviction proceeding such as this.

Appellant cannot be master of his own pleadings before the District Court, inasmuch as he has repeatedly disavowed all attempts on the part of others to raise the issue of his competence at the time of his guilty plea. If appellant is indeed mentally incompetent, as the amicus memorandum suggests, we cannot rely upon his election as to whether that issue is to be raised in defense. The court below may, at its discretion, appoint ■counsel to represent appellant’s interests, -or if he persists in refusing counsel the ■court may appoint an amicus curiae to present the case independently. The 'Clerk is directed to lodge with the Clerk of the District Court copies of pertinent papers filed in this court for such use as the District Court may deem desirable.

The appeal from the denial of the motion for a new trial upon the basis of newly discovered evidence is dismissed as without merit. The order denying the § '2255 motion to vacate sentence is set aside, and the case is remanded for further proceedings not inconsistent with the opinion of the court above set forth.

Order set aside and case remanded.

1 . This case presents us with a different problem than that before the court in Plummer v. United States, 104 U.S.App.D.C. _, 200 F.2d 729. There the court reaffirmed the settled principle that any reason for vacating judgment not urged upon the trial court by the § 2255 petition may not be considered on appeal. Here we are met with the unusual situation that the amicus curiae appointed by this court presents us a possible ground that appellant himself rejects vehemently. It would be anomalous indeed to require a possibly incompetent person to present the issue of Ms own incompeteney while he repeatedly denies that he is now or ever has been mentally incompetent.