Edward B. Bishop v. United States

223 F.2d 582, 96 U.S. App. D.C. 117, 1955 U.S. App. LEXIS 3990

Opinions

PRETTYMAN, Circuit Judge.

This is an appeal from a denial of a motion filed under Section 2255, Title 28, of the United States Code.

Appellant was convicted in 1938 — sixteen years ago — of murder in the first degree and was sentenced to death. Thereafter, in 1940, a mental inquisition was held, and he was found to be insane and sent to St. Elizabeths Hospital. In March, 1952, the President commuted the death sentence to “imprisonment for life, to commence upon the date of his commutation.” In October, 1952, the Superintendent of St. Elizabeths Hospital certified that Bishop had recovered his reason and was then of sound mind, and discharged him from treatment in the Hospital. He was thereupon returned to the penitentiary to serve the commuted sentence.

Upon the present motion to vacate the judgment of conviction, appellant raises three principal points: (1) that counsel appointed to defend him at the trial was ;per se incompetent; (2) that the defense of insanity was not raised at the trial and that he (Bishop) was of unsound mind at the time of the trial; and (3) that the Bureau of Prisons has unlawfully certified the date of his eligibility for parole as being fifteen years from the date of commutation instead of from the date of the original sentence.

1. Appellant contends that his court-appointed counsel had been admitted to the bar only six months before the trial, had had only two days criminal trial experience prior to'the trial and was therefore incompetent to represent an accused in a capital case. The lawyer against whom attack is presently made was joined by another attorney in the conduct of the trial and by three others in the notice of appeal. The competence of counsel is demonstrated by action rather than by inference. The trial was long and the witnesses numerous, and all the Government witnesses were cross-examined. Nine prayers were prepared and presented to the trial court by defense counsel. The defense was vigorously pressed at all stages.. The. judgment of conviction was appealed to this court, and in an exhaustive opinion by the late Chief Justice Vinson (then Associate Justice of this court), concurred in by then Chief Justice Groner and Associate Justice Edgerton, it was affirmed.¹ We find no merit in the contention that counsel were incompetent.

2. While Bishop makes some reference to insanity at the time of the commission of the crime, which would be a defense to the indictment, this is not the burden of the motion to vacate. The issue of insanity as a defense is presentable upon the trial and appealable if error has been made in respect to it, and a motion to vacate under Section 2255 cannot be used as a substitute for an appeal.² Therefore an alleged insanity at the time of the commission of a crime cannot be used as a basis for a motion under Section 2255.³

Bishop’s chief contention in respect to his mental condition is that he was not competent at the time of his trial. The question is whether at the time of trial he was mentally competent to understand the proceedings against him and properly to assist in his own defense. There is a division among the courts upon whether that question can be raised by a motion under Section 2255.⁴ In this jurisdiction the question was answered in Sanders v. Allen.⁵ 6It was established by that case that competency at trial may be raised as an issue on a petition for a writ of habeas corpus.

We turn then to determine whether the finding of the District Court that Bishop was competent to stand trial was supported by substantial evidence or was clearly erroneous. The court had before it for consideration:

(a) A presumption of competency at the time of the trial. Bishop had not theretofore been found incompetent.

(b) Bishop’s testimony at the trial, as shown by the report of it in the bill of exceptions prepared in elaborate detail by his counsel.⁶ He testified at length, in detail, and coherently so far as the record shows. He testified that he had been in the Navy for six or eight months and had worked for W.P.A. for about eighteen months. He met the overwhelming evidence of the eyewitnesses to the murder by the adroit defense of drunkenness. He sturdily withstood a long, severe cross examination. Under examination by the court he talked about divorce, annulment, and other phases'of his matrimonial difficulties, explaining that he had discovered his wife had another husband when he (Bishop) married her and that he did not know what to do about the legal situation. He was extremely skillful in his explanation of his possession of the hammer at the time of the murder. The character of Bishop’s own testimony at the trial was convincing evidence of his then-capacity to undergo trial and to assist in his own defense.

(c) The facts that the United States Attorney had taken the precaution to have a psychiatrist examine Bishop before the trial and the doctor, a Dr. Evans, made a detailed report in writing, concluding: “This man has no delusions, hallucinations nor anything that would be suggestive of a mental disorder.”⁷

(d) The following chain of facts: On October 11, 1938, the aforementioned report of the psychiatrist was made. About a month later, November 15th, Bishop was sentenced to death after a conviction by jury. A year later the conviction and sentence were affirmed by this court. Six weeks thereafter a psychiatrist certified that Bishop was then “suffering from insanity”. A jury was impaneled, an inquisition had, Bishop adjudged insane, and the execution of the death sentence suspended “until such time as he is restored to sanity.” That was on May 31, 1940. Almost twelve years thereafter, on January 28, 1952, District Judge Jesse C. Adkins, then retired, who had been the trial judge in Bishop’s case and was a wise, careful and experienced judge, wrote the Pardon Attorney in the Department of Justice:

“From the opinion of Dr. Winfred Overholser, Superintendent of Saint Elizabeths Hospital and Dr. Bernard A. Cruvant, his assistant, under whose supervision petitioner, Edward C. Bishop, has been for some years, it seems probable that the petitioner will not recover his sanity as long as the death sentence stands, and therefore that the death sentence will never be carried out. Therefore, it seems cruel to let that sentence stand. I recommend that the sentence be commuted to life imprisonment or a term of years not greater than his present life expectancy.”

About sixty days thereafter, on March 24, 1952, the President commuted the death sentence to life imprisonment. In seven months, on October 9, 1952, Dr. Overholser certified that Bishop “has recovered his reason and that he is now of sound mind”. This chain of events leads to belief that Bishop’s mental difficulty might well have been a prison psychosis caused by the shadow of the sentence. It fails to indicate incompetence at time of trial.

(e) The fact that no issue as to competence at the time of trial was raised for more than fifteen years, although the record shows that Bishop’s trial lawyers made diligent efforts in his behalf throughout the trial and upon appeal.

(f) The burden of proof upon Bishop, the movant. It is well established that the movant in a collateral attack upon a judgment, especially one affirmed upon appeal, undertakes a severe burden.⁸ And this burden is magnified when the attack does not come until fifteen years after the event.

(g) The fact that, this having originally been a capital sentence, this court, upon the appeal from the judgment of conviction, not only considered the points raised by the appellant but examined the whole record for error and made no suggestion of an incompetence on the part of the accused to undergo trial.

(h) On the other hand, and contrary to the foregoing, the 1954 affidavit of Dr. Overholser, which concludes as follows:

“In view of the foregoing, the historical background of the patient and his family, his almost savage conduct and means used in taking the life of his second wife in contradistinction to his behavior while under my care and treatment during the twelve year period, in addition to the long period required to bring about his full recovery, it is, therefore, my considered professional opinion that Edward B. Bishop was suffering from mental disorder of such degree and nature as to render him legally insane when he took the life of his second wife on July 23, 1938.”

Section 2255 provides that upon a motion under it the court must make findings of fact and conclusions of law with respect thereto, unless the motion, files and record conclusively show the prisoner is entitled to no relief. So, when a court acts after a hearing upon a Section 2255 motion based upon incompetency, it must make a specific finding of competency or incompetency. In the case at bar the court made such a finding. That finding was a finding of fact; ⁹ the conclusion of law with respect thereto was that the motion to vacate should be denied. The question before us is whether we will set aside the finding of competency.

The rule which governs us was stated by the Supreme Court in the Gypsum Co. case.¹⁰ The courts have recognized a difference between the scope of a reviewing court’s examination in a review of findings in which the credibility of witnesses is involved, and the scope in a review of findings which rest entirely upon documentary material; but in neither case may an appellate court reverse unless it has a firm conviction of clear error in the findings.¹¹ We are not to reverse a finding by a trial court, even if upon documentary evidence, unless we conclude that the finding is clearly erroneous on the entire evidence. In the Gypsum Co. case the Court said:

“Since judicial review of findings of trial courts does not have the statutory or constitutional limitations on judicial review of findings by administrative agencies or by a jury, this Court may reverse findings of fact by a trial court where ‘clearly erroneous.’ * * * A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” ¹²

A trial judge is not supposed to recite the evidence upon which he bases a finding,¹³ and the validity of his finding does not depend upon what an appellate court thinks he had in mind at the moment; he is presumed to have had the whole record in mind. There are in many cases ultimate findings that must be supported by intermediate underlying findings. Such was the situation in Kelley v. Everglades District.¹⁴ But every fact — all the way from atomic nuclei to astronomical galaxies — is ultimate to some propositions and underlying to others, and so every fact is underlain by other facts. The law is practical in this respect, and, while it looks for supporting findings to many sorts of ultimate findings, it also deals with many findings as arising directly from the evidence without the interposition of separate supporting findings. This is such a case. The issue was competency, and the conclusion was a direct finding from the evidence as disclosed by the file and the record.

Looking at the evidentiary material which was in the record before the District Court, and which we have briefly described, we think there was substantial evidence from which the District Court could find, as it did find, that Bishop was competent at the time of trial.¹⁵ Certainly we have no “definite and firm conviction that a mistake has been committed.” ¹⁶

8. Appellant contends that the President had no power to attach to the commutation order the condition that the life sentence begin to run at the date of the commutation. The practical point in this contention is that a person under a life sentence is eligible for parole at the end of fifteen years. If Bishop’s life sentence had begun to run at the time of his original sentence in 1938, he is eligible for parole at the present time. It is settled that the power to pardon is an executive power not subject to judicial review.¹⁷ Moreover it would seem clear that the power to commute the death sentence would necessarily include the power to attach reasonable conditions.

The order of the District Court is

Affirmed.

1 . Bishop v. United States, 1939, 71 App. D.C. 132, 107 F.2d 297.

2 . Smith v. United States, D.C.Cir., 1950, 88 U.S.App.D.C. 80, 187 F.2d 192, certiorari denied, 1951, 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358.

3 . See Hahn v. United States, 10 Cir., 1949, 178 F.2d 11; Whelchel v. McDonald, 5 Cir., 1949, 176 F.2d 260; Byrd v. Pescor, 8 Cir., 1947, 163 F.2d 775, certiorari denied, 1948, 333 U.S. 846, 68 S.Ct. 648, 92 L.Ed. 1129; Rolfe v. Lloyd, 9 Cir., 1939, 102 F.2d 606; Hall v. Johnston, 9 Cir., 1936, 86 F.2d 820; Whitney v. Zerbst, 10 Cir., 1933, 62 F.2d 970; Fenton v. Aderhold, 5 Cir., 1930, 44 F.2d 787.

4 . Hahn v. United States, 10 Cir., 1949, 178 F.2d 11; Ashley v. Pescor, 8 Cir., 1945, 147 F.2d 318; McMahan v. Hunter, 10 Cir., 1945, 150 F.2d 498, certiorari denied, 1946, 326 U.S. 783, 66 S.Ct. 332, 90 L.Ed. 475; Forthoffer v. Swope, 9 Cir., 1939, 103 F.2d 707; McIntosh v. Pescor, 6 Cir., 1949, 175 F.2d 95.

5 . 1938, 69 App.D.C. 307, 100 F.2d 717.

6 . Section 2255 specifically provides that the files and record of the criminal ease out of which the motion (under Sec. 2255) arises may be consulted by the judge hearing the motion, and thus those files and record are made part of the record in a proceeding on a motion to vacate under Section 2255. Repeated references in the transcript of the proceeding before us make clear that the files and record in the criminal case were before the judge hearing the motion and were examined by him.

7 . That Dr. Evans’s report was before the court as part of the files and record of the criminal case is established by the facts that (1) counsel at the hearing on the motion in the District Court flatly stated, without contradiction, that the document was in the record and part of the court file, and (2) a copy of it is among the papers certified to this court by the Clerk of the District Court as having been before that court in this proceeding.

8 . See Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

9 . E. g., Section 4244, Title 18, U.S.C., requires that the court “make a finding” with respect to mental incompetency. And see Ashley v. Pescor, 8 Cir., 1945, 147 F.2d 318; Frame v. Hudspeth, 10 Cir., 1939, 109 F.2d 356, 358-359, reversed on other grounds, 1940, 309 U.S. 632, 60 S.Ct. 712, 84 L.Ed. 989; Hall v. Johnston, 9 Cir., 1939, 103 F.2d 900. And it needs no citation to establish that sanity as an issue in a jury case must be submitted to the jury.

10 . United States v. United States Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746.

11 . See discussion and cases cited in Note to proposed amendment of Buie 52, Buies of Civil Procedure, prepared by the Advisory Committee on Buies for Civil Procedure, May, 1954. And see Engstrom v. Wiley, 9 Cir., 1951, 191 F.2d 684; Frank Adam Electric Co. v. Colt’s Patent Fire Arms Mfg. Co., 8 Cir., 1945, 148 F.2d 497; Heim v. Universal Pictures Co., 2 Cir., 1946, 154 F.2d 480, 488, 491 (concurring opinion of Judge Clark); Holt v. Werbe, 8 Cir., 1952, 198 F.2d 910, 916-917; Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, Etc., 5 Cir., 1943, 137 F.2d 176, 180-181, affirmed, 1944, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 9-19; Central Ry. Signal Co. v. Longden, 7 Cir., 1952, 194 F.2d 310, 317-318.

12 . Supra note 10, 333 U.S. at page 395, 68 S.Ct. 525.

13 . United States v. Forness, 2 Cir., 1942, 125 F.2d 928, 942-943, certiorari denied sub nom. City of Salamanca v. United States, 1942, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764; Petterson Lighterage & Towing Corp. v. New York Central R.Co., 2 Cir., 1942, 126 F.2d 992.

14 . 1943, 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485.

15 . See United States v. National Association of Real Estate Boards, 1950, 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007; United States v. Oregon Med. Soc., 1952, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978; McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. —.

16 . The case at bar does not present the problem of Massey v. Moore, 1954, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed.—. Here the movant had counsel, a hearing was had on the motion, and a finding was made.

17 . Yelvington v. Presidential Pardon & Parole Attorneys, D.C.Cir., 1954, 94 U.S. App.D.C. 2, 211 F.2d 642; Stroud v. Johnston, 9 Cir., 1943, 139 F.2d 171, certiorari denied, 1944, 321 U.S. 796, 64 S.Ct. 846, 88 L.Ed. 1085; Bozel v. United States, 6 Cir., 1943, 139 F.2d 153, certiorari denied, 1944, 321 U.S. 800, 64 S.Ct. 120, 88 L.Ed. 1087; Lupo v. Zerbst, 5 Cir., 1937, 92 F.2d 362, certiorari denied, 1938, 303 U.S. 646, 58 S.Ct. 645, 82 L.Ed. 1108.