John E. Hodges v. United States , 282 F.2d 858 ( 1960 )

PER CURIAM.

This is an appeal from a judgment of the District Court, declining to vacate appellant’s sentence of imprisonment for crime, under 28 U.S.C. § 2255 (1958), as against appellant’s allegation that his conviction was obtained by reason of a coerced confession introduced at his trial. The case was first heard by a division of the court, and the judgment was affirmed on December 30, 1959. Later, appellant filed a petition for rehearing by the division. Reargument was had, before the court en banc, on our own motion. A majority of the full court now affirms the judgment of the District Court.

So ordered.

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

Speaking for a majority of the division which first heard this case, Judge Fahy issued on December 30,1959, an excellent opinion with which in most respects I am glad to agree. To the extent, however, that that opinion may be said to adopt a theory of “excusable neglect” akin to that later rejected by the Supreme Court in United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed. 2d 259 (1960: direct appeal), I am constrained to disagree with it, as well as with the supplemental opinion Judge Fahy has prepared with respect to the petition for rehearing.

I think it may be well, first of all, to say a word about some of the practical problems presented by petitions under Section 2255, with particular reference to those petitions which seek to challenge the admissibility of confessions. In a substantial portion of the felony cases tried in the United States District Court for the District of Columbia, where trial is had after a plea of not guilty, confessions or admissions made by the accused to the police are offered in evidence by the prosecution. Counsel for the accused commonly attack such confessions or admissions as coerced, or as the product of illegal detention. Full opportunity is ordinarily given, in a hearing held in the jury’s absence, to develop all the circumstances of the accused’s arrest, detention, interrogation, and arraignment. Police officers are examined and cross-examined. The accused commonly takes the stand to give his version of the occurrences in question. Counsel urges legal argument on the court. At length, the court decides whether or not to allow the confession to go into evidence before the jury. If the judge decides to do so, his task is not ended. He must, if the case finally goes to the jury, give them proper instructions. And if a verdict of guilty results, he is empowered to set aside the verdict if he is persuaded that it is not supported by the evidence, or is otherwise defective — as, for example, where he concludes that he erred in allowing the confession to be admitted. But, if the verdict is allowed to stand, and sentence in due course follows, there is still the right and privilege of appeal.

All of these safeguards are made available to the accused to protect him from being convicted on the basis of a coerced confession. Failure of the trial judge to give necessary protection to the rights of the accused at any step of this process may be reviewed on appeal — on a record which is fresh in the minds of all concerned. If a new trial is ordered, it can ordinarily be begun without delay. Witnesses are usually still available. But if an appeal is not taken, and the accused files a petition under Section 2255 some months or years later, the situation is very different. The accused — now a prisoner — may not be impressed with the risk of committing perjury in framing his petition. He is frequently advised by a “jail-house lawyer”, who may encourage him to embroider his story, or to attack the good faith and diligence of his trial counsel.

The Supreme Court has to face a similar problem, in dealing with in forma pauperis petitions for certiorari — now running at the rate of many hundreds a year (772 in 1958). Mr. Justice Douglas says that the “claims made are often fantastic, surpassing credulity. They are for the most part frivolous.”¹ He adds that over the past 21 years the rate at which such petitions were granted was less than 4'%.²

The problems faced by the District Court and this court in dealing with petitions under Section 2255 are of like nature. It may be that less than 4% of such petitions ultimately prove meritorious. Yet we must scrutinize all of them with care, not only because it is our duty under the statute but because we are traditionally obligated to give relief in habeas corpus — for which the statute provides at least a partial substitute— in cases where a clear miscarriage of justice has occurred. But, absent a showing of a real miscarriage of justice, I think we must hold to the general rule that the admission of a confession at a plenary trial³ is not subject to attack under Section 2255 on the ground that the confession was coerced, or was given during a period of illegal detention. Allowing such collateral attacks to be made would permit the reopening of many of the most lengthy and hotly contested criminal trials — at a time when recollections may have dimmed and witnesses may have disappeared.

In his petition for rehearing, Hodges says that he did not take a direct appeal from the judgment of conviction because he did not know he had only ten days within which to appeal, and because he was taken to jail after being sentenced by the District Court and his counsel had no opportunity to advise him about taking an appeal. Assuming arguendo that this constituted “excusable neglect,” ⁴ it does not extend the time for taking a direct appeal, United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); a fortiori it cannot expand the scope of relief grantable under Section 2255 into that available on direct appeal

Of course, if the Government has obstructed the accused in his efforts to take a direct appeal, that is another story. Cf. Dowd v. U. S. ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951). But mere neglect in taking an appeal — excusable or not — should not open the door to the bringing of collateral attack under Section 2255, in a case where it would not otherwise lie. Such a view would greatly hamper the courts in their task of rendering prompt justice in current cases, and would tend to revive the “intolerable uncertainty and confusion” which the Supreme Court was seeking to end in its decision in United States v. Robinson, supra, at page 230 of 361 U.S., at page 288 of 80 S.Ct. While the concluding footnote in that ease reminds the bench and bar that “there are a number of collateral remedies available to redress denial of basic rights,” including the remedy under Section 2255, the Supreme Court could hardly have intended by this to undermine its decision in Robinson, or to expand a collateral remedy into a substitute for an appeal, in a case (like the present) where no basic right has been denied, within the principles announced in Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), and other governing decisions. The scope of relief grantable under Section 2255 or in habeas corpus is not to be diminished by failure to appeal, but neither is it to be increased.

1 . Douglas, The Supreme Court and its Case Load, 45 Cornell L.Q. 401 at 407.

2 . Id. at 407. Presumably an even smaller percentage represented ultimate success by the petitioner in gaining relief from conviction or punishment.

3 . Where no such trial is held, and the accused is convicted on the basis of a coerced plea of guilty, the situation is entirely different: collateral attack is of course available. Thomas v. United States, 1959, 106 U.S.App.D.C. 234, 271 F.2d 500.

4 . However, this accused’s knowledge of the law can hardly be the subject of any meaningful judicial inquiry. As to the alleged lack of opportunity to consult with counsel, the record shows that the verdict of guilty was rendered on April 15, 1957, and that sentencing took place on May 3, 1957. Hodges was represented at the trial and at sentencing by two attorneys, both apparently retained by him. If either had perceived any substantial basis for an appeal, it is almost incredible that Hodges would not have been so advised prior to May 13, the last day for taking an appeal.