United States v. Darrell James Brown

413 F.2d 878

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 1969
• Docket: 23156
• Status: Published

Opinions

BARNES, Circuit Judge:

Appellant in propria persona takes this appeal from a district court decision denying relief in a collateral proceeding, designated as a “Motion to Vacate Sentence or for a Writ of Coram Nobis.” Appellant has mislabeled his petition. He is not entitled to relief under Federal Rule of Criminal Procedure 35 because his sentence is not itself illegal. Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Coram Nobis is not available, since he is still in custody. Cf. Fed.R.Civ.P. 60(b). Hence, we treat the petition filed below as a motion under 28 U.S.C. § 2255. It was denied in the district court, and we affirm.

We quote from the order of the district court judge (Judge.Ferguson):

“On March 7, 1951, petitioner was indicted with three other codefendants for violation of 18 U.S.C. § 2114 — Robbery from Mails.¹ This indictment alleged that on January 16, 1951, in Los Ange-les County, the four defendants robbed the Postmaster at Pacoima, California, of $2,085.26 and in effecting the robbery put in jeopardy the life of the Postmaster by the use of a .32 caliber revolver.

“On March 12, 1951, the petitioner was arraigned on the charge by the late Judge William C. Mathes. Plaintiff requested the appointment of an attorney, and George H. Pratt, Esq., was appointed by Judge Mathes.

“Judge Mathes continued the arraignment of the petitioner until March 14, 1951, for the purpose of entering a plea.

“On March 14, 1951, the petitioner pleaded guilty. Before accepting the plea, Judge Mathes read the indictment, and the provisions of 18 U.S.C. § 2114. A discussion ensued whether or not a mandatory twenty-five years was required. Judge Mathes was most positive that he would not accept a plea until petitioner was fully advised. The matter was then put over to later in the day to provide more consultation between the petitioner and his attorney.

“When the cause was subsequently called again, the petitioner again pleaded guilty. Judge Mathes carefully questioned the petitioner to determine whether or not his plea was intentionally and voluntarily made with complete awareness of the consequences of the plea. Judge Mathes states ‘Of course, you understand that upon giving this plea of guilty you have no hope of leniency? The law compels the Court to mete out the punishment of a twenty-five year prison sentence. Do each of you understand that?’ The petitioner replied that he did.

“Judge Mathes accepted the guilty plea and sentenced the petitioner to the mandatory twenty-five years.

“On September 21, 1967, the petitioner, in proceeding number 67-1389-FW, filed in this court a motion pursuant to 28 U.S.C. § 2255, contending that Judge Mathes did not comply with Rule 11 of the Federal Rules of Civil [Sic] Procedure prior to accepting the plea of guilty.

“The motion was heard by Judge Frances C. Whelan of this court, and on January 18, 1968, he filed his Memorandum Decision and Order denying the 2255 motion. Judge Whelan decided that the plea was voluntary, was made with understanding of its consequences and the petitioner did not have an erroneous belief in regard to the mandatory sentence.²

“There was no appeal from Judge Whelan’s Order and it is binding in this proceeding. In addition, however, an independent review of the record requires this court to conclude the same as did Judge Whelan.

“The petitioner in this proceeding now claims that the sentence of Judge Mathes was illegal. The sentence was legal. A reading of 18 U.S.C. § 2114 is clear that under the wording of the indictment by which petitioner was charged ‘life in jeopardy by the use of a dangerous weapon’ requires a mandatory imprisonment of twenty-five years. Judge Mathes was not in error.

“In regard to petitioner’s claim that he was in error in not understanding that Judge Mathes was required to impose a mandatory twenty-five year sentence, the record and Judge Whelan’s decision in the 2255 motion lay to rest the claim. The petitioner in his argument attached to his complaint concedes that Judge Mathes was extremely cautious in accepting the guilty plea. There is no question that the petitioner knew that the sentence of twenty-five years was mandatory.” C.T. 28-30.

Our own examination of the transcript of the proceedings had before the sentencing judge shows that most of appellant’s contentions are completely frivolous.

After the filing of appellant’s opening brief, the Government’s brief, and appellant’s reply, appellant sought from this court, and received, permission to file a supplemental pleading. We have considered the cases cited therein, and find nothing therein to cause us to come to any conclusion other than to affirm the sentence, based as it was upon a clearly uncoereed plea of guilty, made with a full understanding on appellant’s part of the consequences of such plea.

Appellant’s reliance upon McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), relating to compliance with Federal Rule of Criminal Procedure 11, is misplaced, for it was held not to be retroactive in Halli-day v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969).

We put aside the question of whether or not a person’s life can be put into jeopardy by the use of a dangerous weapon, to wit, a .32 revolver, whether loaded or unloaded. Many a gun has been used as a dangerous weapon without its being fired.

Appellant raises the question as to whether or not the gun used in the holdup could be fired; and if not, had he placed the Postmaster’s life in jeopardy.

This point was raised in mitigation of punishment prior to sentence. The trial judge immediately invited the appellant, with his codefendants, to consider the possibility of pleading guilty “to a portion of this charge. They might deny putting the life in jeopardy. * * * ” (C.T. 39.) Two of the codefendants asked for further delay, and obtained it, but appellant asked for, and received an immediate sentence. cf. Wagner v. United States, 264 F.2d 524 (9th Cir. 1959); LaClair v. United States, 241 F. Supp. 819, 828 (N.D.Ind.1965), and cases cited.

Smith v. United States, 309 F.2d 165 (9th Cir. 1962), is not similar on its facts. There the petitioner was unrepresented by counsel at his trial, and mis-advised by Government counsel. Compare, Alexander v. United States, 290 F. 2d 252 (5th Cir. 1961).

Affirmed.

1 . (not in Judge Ferguson’s order) 18 U.S.C. § 2114. Mail, money or other property of United States, Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money or other property of the United States, or robs any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or .attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.

2 . (not in Judge Ferguson’s order) Judge Whelan stated in this regard: “It appears, therefore, that there is no basis whatsoever for petitioner’s motion and petition.” C.T. 26.