Virgil v. Lampe v. United States

288 F.2d 881, 110 U.S. App. D.C. 69, 1961 U.S. App. LEXIS 5140

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 9, 1961
• Docket: 15383
• Status: Published

Opinions

WASHINGTON, Circuit Judge,

with whom WILBUR K. MILLER, Chief Judge, and PRETTYMAN, DANAHER, BASTIAN and BURGER, Circuit Judges, concur.

Lampe was convicted of second degree murder, and on appeal we affirmed the judgment. Lampe v. United States, 1956, 97 U.S.App.D.C. 160, 229 F.2d 43. Later, Lampe filed a series of motions to vacate his sentence, under Section 2255 of Title 28 U.S.C. The District Court, in denying the third of these motions, allowed an appeal in forma pauperis. We appointed counsel, who urged a ground not contained in the petition before the District Court, namely, that a confession by Lampe introduced at his trial “was not the product of any meaningful act of volition.” See Blackburn v. State of Alabama, 1960, 361 U.S. 199, 211, 80 S.Ct. 274, 282, 4 L.Ed.2d 242. A panel of this court, by judgment entered May 12, 1960, affirmed the action of the District Court. A rehearing en banc was thereafter ordered.

In the first place, since the petition before the District Court did not raise the point on which counsel now relies, it cannot be raised on appeal. Plummer v. United States, 1958, 104 U.S.App.D.C. 211, 260 F.2d 729. In the second place, the point now at issue was urged at Lampe’s trial, was fully explored there, and was decided against him. Lampe took a direct appeal following his conviction, and was represented here by two able court-appointed counsel. In an opinion written for a unanimous division, we said, among other things:

“Lampe’s counsel objected [at the trial] to the admission of the confession ‘on the ground that the man was incompetent to dictate it.’ Thereupon the court heard evidence on that subject in the absence of the jury, after which the jury was recalled and heard six witnesses as to Lampe’s condition when he confessed. The trial judge carefully charged the jury to decide for itself whether the confession was voluntary, not only as to Lampe’s competency to make it, but also in all respects. The appellant did not argue here that his confession was erroneously received.” Lampe v. United States, supra, 97 U.S.App.D.C. at page 162, 229 F.2d at page 45.

Lampe thus received a full hearing at his trial on the issue of his competency to confess, and the voluntariness of his confession. He had “full opportunity to attack on his trial the evidence now challenged and to appeal on the basis of its erroneous admission if he so desired,” Smith v. United States, 1950, 88 U.S.App.D.C. 80, at page 86, 187 F.2d 192, at page 198, certiorari denied, 1951, 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358. He made such an attack at the trial, but did not renew it on appeal. Nevertheless, this court on appeal did notice (as we have seen) the objection made at trial.

Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114, reversing 1956, 98 U.S.App.D.C. 160, 233 F.2d 362, is not relevant here. Our opinion there recognized that the contention that the accused had not received a speedy trial might in an extreme case be raised in a Section 2255 proceeding, even though it had not been raised at trial or on appeal from the conviction. But we did not regard Jordan’s situation as being so extreme as to point to the setting aside of the conviction, or to require a hearing. The Supreme Court, evidently regarding the facts there raised as being sufficiently exceptional to require an evidentiary hearing, vacated our judgment, without opinion, and remanded the case to the District Court for such a hearing. The Supreme Court’s decision is not by any means to be regarded as a holding that where (as in the instant case) a point has been raised at trial, and there fully explored, but abandoned on appeal, the accused is entitled to raise the same point again in a Section 2255 proceeding, and obtain an evidentiary hearing. Such a view is simply not consistent with the orderly administration of justice. The instant case and Jordan’s are poles apart. Lampe had a full hearing, at his trial, on the point now urged collaterally. Jordan did not.

It has always been the custom of this court “in cases of serious criminal offenses, to check carefully the record for error prejudicial to defendant which he did not urge,” either at the trial or in this court. See Williams v. United States, 1942, 76 U.S.App.D.C. 299, 300, 131 F.2d 21, 22; Tatum v. United States, 1951, 88 U.S.App.D.C. 386, 388, 190 F.2d 612, 614, and cases there cited. The detailed opinion of the division in Lampe’s direct appeal shows that the entire record of the trial was scrutinized with care, in accordance with our practice, and found to be free of reversible error. Under the decision in Smith, the admission of the confession cannot now be challenged.

The order of the District Court will be

Affirmed.