John Campbell v. United States

318 F.2d 874

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 22, 1963
• Docket: 13846
• Status: Published

Opinions

EILEY, Circuit Judge.

The District Court denied, without a hearing, petitioner’s “second or successive” motion under 28 U.S.C. § 2255 to vacate sentence and judgment of conviction. He has appealed.

In an earlier motion filed by him under § 2255, petitioner requested leave to sue in forma pauperis and for appointment of counsel to represent him. The forma pauperis motion was granted. Counsel was not appointed for him. His § 2255 motion was denied.¹ This court, by order, on certificate of the District Court that the appeal was not taken in good faith, denied petitioner’s motions to appeal in forma pauperis and for appointment of counsel. The Supreme Court denied certiorari. 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962). The proceeding at bar followed.

In this second motion at bar under § 2255, petitioner claims violation of his constitutional rights in a wire tapping violation of the Federal Communications Act, unlawful arrest and search, the knowing use of perjured testimony, the manner in which the Government made its proof, and failure to allege and prove venue. This motion was denied without hearing and without counsel on the ground that it was the “second or successive motion for similar relief.”² This court granted petitioner leave to appeal in forma pauperis, and appointed counsel for him.

On March 18, 1963, this court filed a unanimous opinion affirming the District Court’s decision. Since that opinion was filed, however, the Supreme Court filed its opinion in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). It held that the Fourteenth Amendment requires the states to follow the federal rule under the Sixth Amendment and appoint counsel for defendants unable to employ counsel in criminal prosecutions unless the right is competently and intelligently waived. A majority of this court, on petitioner’s motion, has granted a rehearing. Our opinion of March 18, 1963, is hereby withdrawn.

Petitioner was effectually denied appeal from the decision on his first motion under § 2255, and since he has been enabled to appeal from the decision in this second proceeding, we think justice requires that we consider the original decision upon which the decision at bar rests.

In McCartney v. United States, 311 F.2d 475 (7th Cir. 1963), this court held that the appointment of counsel in § 2255 proceedings is discretionary. Neither the District Court, nor this court in denying the appeal, however, had the benefit of the Supreme Court holding in Gideon v. Wainwright when petitioner’s motion for counsel, in the first § 2255 proceeding, was presented before them. If that decision had then been available, there might have been no basis for denial, on the ground given, of a hearing under petitioner’s second motion, subject of this appeal. In the light of the Gideon case, it is our opinion, since no good reason appears why petitioner should not have had the aid of counsel in presenting his first motion, that the order at bar should be reversed.³ We agree with counsel for petitioner on this appeal that the decision at bar was more or less mechanical inasmuch as it was the “second or successive” motion and that it was on his first motion under § 2255 that he was entitled to counsel.

The order at bar is reversed, and the cause is remanded with directions to reconsider the petition at bar as an original petition under § 2255.

1 . Petitioner’s first § 2255 motion alleged that he was denied constitutional rights in the following particulars: defective indictment; unlawful arrest and search; ineffective counsel; no opportunity to confront witnesses against him; and unfair trial.

2 . 28 U.S.C. § 2255 provides, in part, as follows: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”

3 . The precise holding in Gideon does not require this result. The holding there involved a state conviction, not a motion under 28 U.S.C. § 2255. We are convinced, however, that the Supreme Court’s view of the right to counsel reflected in the Gideon opinion indicates the result we have reached.