Charles H. Plummer, Jr. v. United States , 260 F.2d 729 ( 1958 )

PER CURIAM.

This is an appeal from a denial without hearing of a motion to vacate sentence. 28 U.S.C. § 2255. After conviction on a charge of taking immoral and indecent liberties on a female child eleven months old, appellant was sentenced on October 7, 1955, to imprisonment for a term of three to nine years. The judgment was affirmed by this Court on appeal. Plummer v. United States, 1956, 99 U.S.App.D.C. 50, 237 F.2d 204.

Appellant, now represented on appeal by appointed counsel, contends that he was entitled to a hearing on his motion, citing two grounds: first, that his motion presented substantial allegations; second, that a point not raised in his motion but apparent from the record entitled him to a hearing.

The motion, which was prepared by appellant without assistance of counsel, alleged four grounds for vacating sentence: (1) illegal arrest, (2) illegal detention, (3) illegal search and seizure, and (4) ineffective assistance of counsel. The first three points are not grounds for vacating a sentence under § 2255 and do not entitle appellant to a hearing. See White v. United States, 1956, 98 U.S.App.D.C. 274, 235 F.2d 221; Newman v. United States, 1950, 87 U.S.App.D.C. 419, 184 F.2d 275. As to the fourth point, the motion does not allege such conduct of counsel as would possibly constitute ineffective assistance. See Mitchell v. United States, 104 U.S. App.D.C._, 259 F.2d 787.

Appellant also urges reversal of the trial court for the specific reason that trial counsel failed to present insanity as a defense, although in his motion to the District Court he made no reference to this point and the District Judge was therefore unaware of any such claim.¹ He argues that this court should order the court below to conduct hearings to determine whether appellant’s trial counsel failed to carry out his duty to present and argue the defense of insanity. Since this point was not specifically mentioned in the motion below, it cannot be raised on appeal. Council v. Clemmer, 85 U.S.App.D.C. 74, 75, 77, 177 F.2d 22, 25, certiorari denied, 1949, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540; Walker v. United States, 7 Cir., 1955, 218 F.2d 80, 81.

If this argument, raised for the first time by counsel on appeal, has any merit in law and fact, relief on that basis is not necessarily foreclosed by this holding. A second or successive motion under § 2255 may be entertained under certain circumstances at the discretion of the District Court.² If petitioner presents a second motion making appropriate allegations, the District Court may exercise its discretion and grant a hearing on the motion. Cf. Belton v. United States, 104 U.S.App.D.C. _, 259 F.2d 811.

Important considerations of public policy suggest that a compulsive sex offender who requires and can possibly be benefited by psychiatric treatment should be committed to a mental hospital for such treatment rather than confined in an ordinary penal institution. However, if appellant is in fact a person who should have been so dealt with, the present record falls short of establishing it. Affirmed.

1 . It is not accurate to say, as the dissent does, that “the facts concerning appellant’s history of insanity were brought to the District Court’s attention by counsel’s Rule 92(a) memorandum * * What appellant’s counsel did was to say simply and in conclusory terms “there was a definite question as to the sanity of the defendant and counsel should have utilized this as a defense.” This did not inform the trial court of the facts but only of counsel’s opinion; it is not for counsel to impose on the trial court the duty of searching through a voluminous record to see if counsel’s “shotgun” conclusions are supported by the record. The word “schizophrenia” is found only in one obscure reference in the record. It appears near the end of a handwritten letter to the court from a government psychiatrist. The trial judge should not be expected to ferret out what is later urged as the heart of the case when counsel himself fails to do so.

2 . See Price v. Johnston, 1948, 334 U.S. 266, 291, 68 S.Ct. 1049, 92 L.Ed. 1356; Turner v. United States, 103 U.S.App.D.C. 313, 258 F.2d 165.