Connell Robinson v. United States ( 1964 )

BURGER, Circuit Judge.

Appellant seeks to have this court construe his petition to modify or vacate a sentence, under 28 U.S.C. § 2255, as a direct appeal from a judgment of conviction entered February 10, 1953. He urges this be done either under Fed.R.Crim.P. 45(b) (2) because of “excusable neglect,” or under Fed.R.Crim.P. 39(a) as an extraordinary exercise of our supervisory power over appeals. The primary ground for urging this exceptional relief is that the prosecutor read to the jury substantively prejudicial parts of an impeachment statement which parts had not in fact been admitted in evidence.

Appellant was indicted for second degree murder arising out of an alleged attack by appellant on the decedent, age 65, in the latter’s home at about 2:00 a. m. on August 9, 1952. Appellant, who was then 27 years old, admitted an altercation and subsequent fight but claimed self-defense. The prosecution’s evidence showed that appellant, who was a stranger to the decedent, entered the latter’s home at a late hour with two companions without invitation, promptly began an argument which led to a struggle in which the decedent sustained a dozen or more deep knife wounds from which he shortly died. One of appellant’s companions said he had not seen any knives in the fight and from this the jury could have inferred that the decedent had no knife. A cab driver, who picked up appellant and his nephew as passengers shortly after the affray, testified that appellant was bleeding and had explained that “a knife had closed up on his hand”; that he heard appellant say “I tried to kill that bastard”; that appellant refused to be taken to the hospital and warned the driver in substance to forget what he had seen.

Appellant’s testimony contradicted essentially all of this and claimed that the decedent, without provocation, had attacked appellant wielding a knife one foot long; that he had only retaliated in self-defense with a small pocket knife. Appellant claimed multiple cuts were sustained by him but the doctor who treated him could recall only one cut on the thumb, which he stitched up shortly after appellant’s arrest. We have carefully reviewed the entire transcript of the trial and find that appellant’s own testimony and that of his nephew-companion was of such character that a jury would have been warranted in discrediting all of their testimony as unreliable. For example, the testimony of appellant and his nephew concerning the nature of the conversation in the taxicab immediately after the incident was significantly contrary to the testimony of the cab driver, a neutral witness. In addition, a statement which according to police testimony was signed by appellant and taken from him at approximately 5:00 a. m. on the morning of the killing was admitted into evidence and used as a basis for vigorous cross-examination of appellant; this statement reveals certain answers by appellant which completely contradict his testimony at trial in at least three important respects.¹

Appellant was represented by paid counsel at his trial; an appeal was filed but abandoned by appellant’s counsel as presenting no reversible error. Appellant thereafter sought without success to perfect his own appeal and mailed numerous letters and various papers to this court between 1953 and May 11, 1954, when the appeal was dismissed after an order to show cause contra had been served on appellant.

In 1956, appellant filed a petition under Section 2255 to vacate or reduce the sentence of 5 to 20 years. Counsel was appointed by the court, and on March 1, 1957, appellant’s appointed counsel moved to dismiss the petition for the reason that appellant desired to press an application for parole.²

Appellant relies primarily upon Belton v. United States, 104 U.S.App.D.C. 81, 259 F.2d 811 (1958), Christoffel v. United States, 88 U.S.App.D.C. 1, 4, 190 F.2d 585, 588 (1951), and Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355 (1957). Each of these cases is distinguishable in at least one very crucial aspect from the instant case in that as to each this court had jurisdiction by virtue of a pending direct appeal; that is not true here. In Belton, this court, sitting en banc, exercised supervisory power over appeals under Fed.R.Crim.P. 39(a),³ holding that failure to comply with Fed.R.Crim.P. 39(c) ⁴ as to filing of records and briefs, after timely notice of appeal, did not foreclose review.⁵ Here, although appellant had timely filed a notice of appeal in 1953, he not only failed to perfect that appeal but it was dismissed by order of this court on May 11, 1954, for failure to respond to a show cause order. Thus, in the situation now before us, unlike the situations in the Belton and Blunt cases, dismissal of the appeal divested this court of appellate jurisdiction and the essential basis for direct review is absent. Compare Robinson v. United States, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). To revive the appeal we would be obliged to treat the instant Section 2255 motion as presenting a direct appeal or treat the 1954 dismissal as unimportant.

In the Belton case, appellate jurisdiction was maintained pursuant to the original notice since the appeal was not dismissed. Although the trial errors committed in Belton were thought sufficient to justify the exercise of extraordinary appellate power when jurisdiction over-a direct appeal had not been divested, we-do not find here that degree of error which would warrant reversal nearly-eleven years after conviction when the-appeal had been dismissed nine years ago, with due notice to appellant.⁶

Assuming, arguendo, that the trial error complained of would have warranted; reversal for a new trial ten years ago,⁷ we cannot find in these circumstances and on this record a basis now for a holding that would convert the present proceedings into a direct appeal after a lapse of nearly 12 years from the event. To grant the extraordinary relief sought at this late date would be warranted to, prevent manifest injustice were such, shown here but not to correct a trial' error.

Petitioner’s motion under Section 2255. was properly denied by the District. Court.⁸

Affirmed.

1 . In the police statement appellant related that he had carried no knife of his own but had cut the deceased with a knife which he had wrestled away from the deceased; also that he had told the driver only that “a guy jumped on me and I cut him after I taken [sic] his knife away from him.” At trial, however, appellant testified that he had tried to take a knife away from the deceased, that when he had entered the house, he (appellant) had been carrying the knife which he used to cut the deceased, and that he had not made those statements to the driver. Compare the taxi driver’s testimony, supra. On cross-examination, appellant denied giving certain answers in the statement taken by the police. Further, although appellant asserted as an excuse for any alleged inconsistencies that the questioning had occurred in the early morning hours when ho had been without sleep and weak from loss of blood, there was ample basis for the jury to reject this explanation as unreliable and similarly discredit his self-defense version of the fight.

2 . Parole was granted and appellant was at liberty for approximately two years and was then returned to prison for parole violation.

3 . “The supervision and control of the proceedings on appeal shall be in the appellate court from the time the notice of appeal is filed with its clerk, except as otherwise provided in these rules. The appellate court may at any time entertain a motion to dismiss the appeal, or for directions to the district court, or to modify or vacate any order made by the district court or by any judge in relation to the prosecution of tlie appeal, including any order fixing or denying bail.” Fed.R.Crim.P. 39(a).

4 . Rule 39(c) directs that the record on appeal shall be filed with the court of appeals within forty days after the filing of the notice of appeal.

5 . This holding derives from the alternative ground for decision in the principal opinion of four judges, 104 U.S.App.D.C. at 85-86, 259 F.2d 815-816, and the concurring opinion of two judges joining in this ground, 104 U.S.App.D.C. at 86, 259 F.2d at 216. It should be noted that the excusable neglect ground was expressly rejected by the concurring opinion and thus did not command a majority. Cf. Christoffel v. United States, 88 U.S.App. D.C. 1, 4, 190 F.2d 585, 588, (1951).

6 . It is hardly correct to say, as the dissent does, that in Belton, supra, “we,” in the sense of this court, found relief imperative because of “a serious error”; this characterization of the nature of the error was expressed in the principal opinion (not by a majority of the court) as justifying waiver of the rules for filing the record. The Blunt case, supra, rested on the court’s view that the “very substantial questions,” 100 U.S.App.D.C. at 72, 244 F.2d at 361 (emphasis added), excused timely filing of the record. Blunt, of course, had an appeal pending; as in the Belton ease, we had only to waive our-rule as to the filing schedule in a valid-appeal then pending.

7 . Any implication that the challenged, statement of the witness Hodge under-no circumstances could have been admitted in evidence is not correct. It is very unlikely that this statement would' have been rejected had the impeachment proffer been made as part of the Government’s case in chief. At this late-stage we ought not ignore this factor-entirely. In his charge to the jury the District Judge gave the usual limit-, ing instruction:

“Now, as to the statement of the witness Hodge to the police officers which, has been presented to you and read' from, you are to consider that statement by way of impeachment and in. considering it for the purpose of determining whether the statement imxjeach-. es the statement of the witness Hodge,, you are not to consider it as independent substantive testimony. * * ® ”

Counsel made no objection concerning this-, instruction.

8 . An appeal from denial of Section 2255. relief, like habeas corpus, Whitney v. Zerbst, 62 F.2d 970, 972 (10th Cir. 1933),. cannot be a substitute for direct appeal.. Here appellant, whose appeal in this court is from denial of Section 2255 relief, now asks us to take his case as on direct appeal and to “dismiss the Section 2255 appeal as moot.”