United State v. Morgan/Dissent Minton

by Sherman Minton

United States Supreme Court

346 U.S. 502

United State  v.  Morgan

 Argued: Oct. 19, 1953. --- Decided: Jan 4, 1954

Mr. Justice MINTON, with whom The CHIEF JUSTICE, Mr. Justice JACKSON and Mr. Justice CLARK join, dissenting.

I am unable to agree with the decision of the Court resurrecting the ancient writ of error coram nobis from the limbo to which it presumably had been relegated by Rule 60(b), F.R.Civ.P. and 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, assuming that the writ has ever been available in the federal courts to review criminal proceedings. A brief reference to the record will emphasize my reasons for doubting the wisdom of this action.

On December 18, 1939, respondent, upon a plea of guilty, was sentenced in a Federal District Court to four years' imprisonment on each of eight counts charging divers violations of 18 U.S.C. § 317 (now 18 U.S.C. §§ 1702, 1708, 18 U.S.C.A. §§ 1702, 1708) and 18 U.S.C. § 347 (now 18 U.S.C. § 500, 18 U.S.C.A. § 500). The sentences ran concurrently and were fully served by respondent, during which time he never questioned their validity. In 1950, respondent was convicted of a state crime, apparently attempted burglary in the third degree, by a New York court and sentenced under that State's multiple Offenders Law. ^[1] The 1939 federal conviction was relied upon to bring respondent within the multiple offenders statute, making possible an increased sentence for the state offense. Respondent is now imprisoned by New York pursuant to that sentence.

Approximately fourteen months after the New York conviction, more than twelve years after being sentenced on the federal conviction, and more than eight years after the federal sentence was completed, respondent filed this 'Application for a Writ of Error Coram Nobis' in the Federal District Court in which he had been convicted. He requested that the federal judgment of conviction 'be set aside, vacated, and be declared null and void' since at the time of the conviction, he neither had the assistance of counsel nor was informed of his constitutional right to counsel, and at the time was only nineteen years of age and without knowledge of the law. Respondent did not allege his innocence of the federal charges or set forth any facts from which innocence could be inferred. And respondent has attempted no explanation of his prolonged delay in seeking to remedy the asserted violation of his constitutional rights, nor intimated that he is now suffering some federal disability as a result of the conviction.

The Court now holds that the validity of a conviction by a federal court for a federal offense may be inquired into, long after the punishment imposed for such offense has been satisfied, by a 'motion in the nature of a writ of error coram nobis' whenever the federal conviction is taken into account by a state court in imposing sentence for a state crime. The basis for this highly unusual procedure is said to be the all-writs section of the Judicial Code, 28 U.S.C. § 1651(a), 28 U.S.C.A. § 1651(a), which provides that:

'The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.' ^[2]

I agree with the majority for the reasons given that procedures other than under the all-writs section are not open to respondent under the circumstances of this case. But I am also convinced that the all-writs section does not countenance the relief sought. Two essential prerequisites to the issuance of a writ pursuant to that statute are lacking: (1) the writ here authorized is not in aid of the jurisdiction of the District Court, and (2) the writ is not 'agreeable to the usages and principles' of present-day law.

That the writ does not issue in aid of the jurisdiction of the District Court appears obvious. Respondent has received a final judgment of conviction, has satisfied the sentence imposed thereunder, and is no longer subject to punishment or control by the court because of the conviction. Therefore, I believe that the jurisdiction of the District Court has been exhausted, the judgment is functus officio, and we should hold that it is no longer subject to collateral attack, just as the courts generally have held that an appeal will not lie from a judgment of conviction when the judgment has been satisfied. Gillen v. United States, 9 Cir., 199 F.2d 454; Bergdoll v. United States, 3 Cir., 279 F. 404. ^[3] Insofar as is shown here, all federal consequences of the proceedings have ended and hence the jurisdiction of the District Court should be held to have ended also. Cf. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; United States v. Plumer, 27 Fed.Cas. No. 16,056, pp. 561, 573-574. See Tinkoff v. United States, 7 Cir., 129 F.2d 21, 23. Writs may be issued under the all-writs section in aid of a jurisdiction that already exists, not to regain a jurisdiction that has been exhausted. Cf. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 584, 50 L.Ed. 963; M'Clung v. Silliman, 6 Wheat. 598, 5 L.Ed. 340. If anything, the purpose of this writ would appear to be to aid the jurisdiction of the New York courts because of their professed inability to inquire into the validity of a federal conviction serving as a basis for an increased sentence under the multiple offenders laws. ^[4]

As to the second prerequisite-that the writ be agreeable to the usages and principles of law-I am of the view that resort to the common law writ of coram nobis has been precluded, if it was ever available in the federal courts to reach matters such as are involved here. See United States v. Smith, 331 U.S. 469, 475, note 4, 67 S.Ct. 1330, 1333, 91 L.Ed. 1610; United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129; United States v. Port Washington Brewing Co., D.C., 277 F. 306. The writ issued at common law to correct errors of fact unknown to the court at the time of the judgment, without fault of the defendant, which, if known, would probably have prevented the judgment. ^[5] The probability of a different result if the facts had been know is a prime requisite to the success of the writ. The sentencing court here must have known that respondent did not have an attorney and was not advised of his right to counsel, if such are the facts. What then was it that the court didn't know which if it had known would probably have produced a different result? The respondent doesn't say, nor does he suggest how a lawyer might have helped him unless he picked the lock on the jail house door. ^[6]

Proceedings to obtain the writ are generally considered to be civil in nature, ^[7] just as habeas corpus is a civil proceeding although most often used to obtain relief from criminal judgments. ^[8] Rule 60(b) of the Civil Rules expressly abolishes writs of error coram nobis and prescribes that civil proceedings for attacking a final judgment shall be by motion as provided in the Rules or by an independent action. Six grounds for such relief are set forth in Rule 60(b), ^[9] which also requires that a motion thereunder shall be made within a year after the judgment if based on mistake, newly-discovered evidence, or fraud, and 'within a reasonable time' if bottomed on other grounds.

Leaving open the question of whether respondent has advanced sufficient reasons for relief pursuant to Rule 60(b) if the proceedings had been timely commenced, he has not established that these proceedings were instituted within a reasonable time after entry of the judgment of conviction, even if the one-year period of limitation is not applicable. Respondent has not sought to explain his long delay in seeking to set aside the federal judgment, and twelve years' delay would appear to be unreasonable on its face, absent unusual circumstances which are not shown to be present here. United States v. Moore, 7 Cir., 166 F.2d 102, 105; Farnsworth v. United States, 91 U.S.App.D.C. 121, 198 F.2d 600; United States v. Bice, D,.c., 84 F.Supp. 290, affirmed, 4 Cir., 177 F.2d 843.

Apparently, having once abolished the common law writ of coram nobis, the Court now undertakes to reestablish it under the name of 'a motion in the nature of coram nobis' in order to escape the limitations laid down in Rule 60(b). Rule 60(b) is said to be inapplicable because coram nobis may be sought by a motion in the criminal case rather than in a separate, independent proceeding. There is no indication that this 'application' was intended as a motion in the case rather than as an independent proceeding to set aside the prior judgment, and several courts have stated that coram nobis proceedings retain their civil character under the modern practice. ^[10]

But assuming the Civil Rules to be inapposite, I believe that Congress superseded the common law writ of coram nobis in enacting 28 U.S.C. § 2255, 28 U.S.C.A. § 2255. ^[11] As the Reviser's Note makes clear, that section 'restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis.' ^[12] H.R.Rep. No. 308, 80th Cong., 1st Sess. A 180. See United States v. Hayman, 342 U.S. 205, 214-219, 72 S.Ct. 263, 269-272. In enacting this comprehensive procedure for collateral attacks on federal criminal judgments, Congress has supplied the remedy to which resort must be had. Since Congress did not see fit in § 2255 to extend the remedy there provided to persons not in federal custody under the judgment attacked, I do not feel free to do so.

It may be said that the federal conviction is still being used against respondent and, therefore, some relief ought to be available. Of course the record of a conviction for a serious crime is often a lifelong handicap. There are a dozen ways in which even a person who has reformed, never offended again, and constantly endeavored to lead an upright life may be prejudiced thereby. The stain on his reputation may at any time threaten his social standing or affect his job opportunities, for example. Is coram nobis also to be available in such cases? The relief being devised here is either wide open to every ex-convict as long as he lives or else it is limited to those who have returned to crime and want the record expunged to lessen a subsequent sentence. Either alternative seems unwarranted to me.

The important principle that means for redressing deprivations of constitutional rights should be available often clashes with the also important principle that at some point a judgment should become final-that litigation must eventually come to an end. These conflicting principles have traditionally been accommodated in federal criminal cases by permitting collateral attack on a judgment only during the time that punishment under the judgment is being imposed, and Congress has so limited the use of proceedings by motion under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255. If that is to be changed, Congress should do it.

Notes

1. New York Penal Law, § 1941.
2. Emphasis added.
3. Decisions of state courts on the point are collected in 24 C.J.S., Criminal Law § 1668; 17 C.J., Criminal Law §§ 3326, 3327.
4. We do not know, moreover, that New York will modify its second offencer sentence, imposed at a time when the federal conviction had not been questioned, even if the federal conviction is later vacated.
5. United States v. Mayer, 235 U.S. 55, 67-69, 35 S.Ct. 16, 18-19; Robinson v. Johnston, 9 Cir., 118 F.2d 998, 1001, vacated, 316 U.S. 649, 62 S.Ct. 1301, 86 L.Ed. 1732, reversed on other grounds, 9 Cir., 130 F.2d 202; Freedman, The Writ of Error Coram Nobis, 3 Temp.L.Q. 365. The scope of the writ has been expanded by some States to provide a vehicle for collateral redress of denials of constitutional rights, usually because the traditional procedures for affording such relief are for some reason inadequate. Hysler v. Florida, 315 U.S. 411, 415, 316 U.S. 642, 62 S.Ct. 688, 690, 86 L.Ed. 932; Fuld, The Writ of Error Coram Nobis, 117 N.Y.L.J. 2212, 2230, 2248; Note, 26 Ind.L.J. 529; Note, 39 Ky.L.J. 440.
6. See United States v. Moore, 7 Cir., 166 F.2d 102.
7. People v. Kemnetz, 296 Ill.App. 119, 15 N.E.2d 883; State ex rel. Meyer v. Youngblood, 221 Ind. 408, 48 N.E.2d 55; State ex rel. Cutsinger v. Spencer, 219 Ind. 148, 41 N.E.2d 601; State v. Ray, 111 Kan. 350, 207 P. 192; Elliott v. Commonwealth, 292 Ky. 614, 167 S.W.2d 703; cf. United States v. Kerschman, 7 Cir., 201 F.2d 682. See also cases collected in 24 C.J.S., Criminal Law § 1606(a).
8. Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826.
9. 'Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.'
10. See cases cited in note 7, supra.
11. 'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.'
12. Emphasis added.