Lipscomb v. United States, 226 F.2d 812 (8th Cir. 1955)

GARDNER, Chief Judge.

These appeals are from certain orders of the trial court entered subsequent to a judgment and sentence entered on a plea of guilty and subsequent to an appeal prosecuted by appellant from an order denying his motion to vacate and set aside the judgment and sentence of conviction upon the ground that he was of unsound mind because of an active drug addiction and that he was mentally incompetent to waive counsel and enter a plea of guilty. We shall refer to appellant as defendant. The prior order appealed from was affirmed by this court in Lipscomb v. United States, 8 Cir., 209 F.2d 831.

In appeal No. 15,322 two orders are challenged. The first order denied defendant’s motion to withdraw his plea of guilty and the second order denied his motion to reconsider the first order. His plea of guilty was entered April 6, 1951, while the motion to withdraw the plea was not filed until November 12, 1954.

The motions involved in this appeal were presented separately and the order denying the motion to withdraw the plea of guilty, among other things, recites that:

The second order appealed from, among other things, recites that:

By appeal No. 15,427 defendant charges that the court erred in overruling two motions interposed by him. The first of these motions was to discharge him on the ground that the judgment did not pronounce effective consecutive terms or in the alternative to vacate judgment and sentence, and the second motion was to correct the judgment on the ground that there is no prima facie law authorizing consecutive sentences.

These motions were apparently considered together and the order denying them contains the following recitals, among others:

ords in the case, which show conclusively that the defendant is entitled to no relief under the present motions, and that the same are without merit.

In this court the two appeals have been consolidated and submitted on briefs. A cursory examination of the background of the proceedings had and taken in this case at and prior to the submission of the four motions here involved may assist to a better understanding of the questions presented to the trial court in the motions here under consideration. Defendant had pleaded guilty to an information containing five counts and on this plea of guilty was sentenced to imprisonment for a period of five years on each count, the sentences to run consecutively. No appeal was taken from the judgment but on June 16, 1952 he filed a motion to vacate the judgment as provided by Title 28 U.S.C. § 2255. This motion was based on the allegation that he was mentally incompetent to waive his right to counsel and to enter a plea of guilty. The trial court granted him a hearing at which he personally appeared and testified in his own behalf. The motion was overruled and on appeal this action of the trial court was affirmed. Lipscomb v. United States, supra. Thereafter successive proceedings were taken by the defendant as recited by the court in the orders here under consideration.

It is, among other things, urged that defendant had not waived his right to trial by jury in the manner provided by Rule 23(a), Federal Rules of Criminal Procedure, 18 U.S.C. Having intelligently entered a plea of guilty there remained no issue of fact to be tried by a jury. As said by us in Lipscomb v. United States, supra [209 F.2d 834]:

See Hood v. United States, 8 Cir., 152 F.2d 431. There remained no function to be performed by a jury.

In his motion filed November 12, 1954, some three and one-half years after the entry of judgment, he asks leave to withdraw his plea of guilty. Just what purpose this could serve is not clear as the judgment had become final and his plea had been adjudged to have been intelligently entered. The motion came too late. Hood v. United States, supra. In any event the granting of such a motion is at best addressed to the discretion of the court. Rachel v. United States, 8 Cir., 61 F.2d 360; Stidham v. United States, 8 Cir., 170 F.2d 294. In Rachel v. United States, supra, we said [61 F.2d 362]:

Again in Stidham v. United States, supra, we said [170 F.2d 297]:

In the above quoted cases the motions to withdraw were made prior to sentence while in the present case the motion was not made until some three and one-half years after sentence and after various motions seeking to vacate or modify the judgment had been denied.

Certainly under such circumstances it could not well be'claimed that the court abused its discretion. Following the denial of his motion to withdraw his plea of guilty defendant interposed a motion to reconsider the order denying his motion. As we are of the view that the court correctly denied the motion to withdraw his plea of guilty it would seem to be a matter of supererogation to consider this contention.

In his first motion involved in appeal No. 15,427 defendant in effect charged that the court erred in its judgment sentencing him separately on each count and then providing that the sentences run consecutively. This question, we think, could only properly be presented on appeal from the judgment but in any event we think it entirely without merit. Terrell v. Biddle, 8 Cir., 139 F.2d 32; Ellerbrake v. King, 8 Cir., 116 F. 2d 168. In Terrell v. Biddle, supra, considering a like contention we said [139 F.2d 33]:

In Ellerbrake v. King, supra, we said [116 F.2d 170]:

In the alternative defendant moved to vacate the judgment and sentence on the ground that the judgment and sentence are void because the waiver of indictment was entered under duress, coercion and fear. His principal argument in support of his contention that the court erred in denying his alternative motion is to the effect that he .was entitled to be present at the hearing of his motion and to introduce evidence in support of his allegation.

A motion to vacate a judgment in a criminal case as provided by Title 28 U.S.C. § 2255, is a collateral attack on the judgment and can be-maintained only upon grounds which would warrant the granting of a writ of habeas corpus. Taylor v. United States, 4 Cir., 177 F.2d 194; Birtch v. United States, 4 Cir., 173 F.2d 316. Such a motion must challenge the jurisdiction of the court or must charge that the defendant has been deprived of due process of law or of other rights guaranteed him by the Constitution of the United States. It appears from the recitals of the order from which this appeal was taken that the court examined the files and records in the case and found the defendant entitled to no relief. In other words, based on the files and records the court concluded as a matter of law that defendant was entitled to no relief. If the court correctly so decided then there was no necessity that the defendant be present nor that he be given an opportunity to introduce testimony. Title 28 U.S.C. § 2255 in part specifically provides:

An examination of the files and records discloses various proceedings taken by the defendant seeking relief from the judgment. Among these proceedings was a prior motion made by him to vacate the judgment under the provisions of Title 28 U.S.C. § 2255. At the hearing on that motion he was personally present, was represented by counsel and introduced testimony. In that proceeding an appeal was taken to this court where the order appealed from was affirmed. Lipscomb v. United States, supra. The same relief was sought in that motion as in the motion here under consideration and the contentions now presented. could have been urged in that proceeding as there is no claim that they arose subsequent thereto and the decision in that proceeding is binding on the ■defendant not only as to the contentions there made but as to all other contentions which could have been made.

In the course of our opinion in Mitchell v. Village Creek Drainage Dist., 8 Cir., 158 F.2d 475, 477, it is said:

respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding but also as to any other available matter which might have been presented to that end. Stevens v. Shull, 179 Ark. 766, 19 S.W.2d 1018, 64 A.L.R. 1258; Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 64 S.Ct. 317, 84 L.Ed. 329; Jackson v. Irving Trust Co., 311 U.S. 494, 61 S.Ct. 326, 85 L.Ed. 297; Billings Utility Co. v. Advisory Committee Board of Governors, 8 Cir., 135 F.2d 108; Kithcart v. Metropolitan Life Ins. Co., 8 Cir., 119 F.2d 497; McIntosh v. Wiggins, 8 Cir., 123 F.2d 316; Howard v. Chicago, B. & Q. R. Co., 8 Cir., 146 F.2d 316. The rule is succinctly stated in 30 American Jurisprudence, Sec. 179, at page 923, as follows:

We have specifically held that the doctrine of res judicata is applicable to a proceeding under Title 28 U.S.C. § 2255. Wilson v. United States, 8 Cir., 166 F. 2d 527; Ray v. United States, 8 Cir., 197 F.2d 268; Howard v. United States, 8 Cir., 199 F.2d 276. What is said by us in Wilson v. United States, supra, is here peculiarly apposite. In the course of the opinion in that case we, among other things, said [166 F.2d 528] :

The instant case is even stronger because the defendant here appealed from the order denying his motion to vacate the judgment and sentence and on appeal the order was affirmed and no appeal has been perfected from the decision of this court so that no doubt can be entertained as to its finality. Public policy requires that there should be an end of litigation and litigants are entitled to protection from harassment by attempts to relitigate questions already finally determined.

We are of the view that the trial court correctly held as a matter of law, from an examination of the record and files in this case, that the defendant was entitled to no relief. His presence at the hearing

was quite unnecessary and he was not entitled to introduce testimony because under the doctrine of res judicata he was precluded from so doing by the prior order entered by the trial court and affirmed on appeal by this court. We have considered all the other contentions urged by defendant on this appeal and find them wholly without merit.

The orders appealed from are therefore affirmed.