McGann v. United States

PETITIONER:McGann
RESPONDENT:United States
LOCATION:Fleetwood Paving Co.

DOCKET NO.: 153
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 362 US 214 (1960)
ARGUED: Mar 03, 1960
DECIDED: Mar 21, 1960

Facts of the case

Question

  • Oral Argument – March 03, 1960 (Part 1)
  • Audio Transcription for Oral Argument – March 03, 1960 (Part 1) in McGann v. United States

    Audio Transcription for Oral Argument – March 03, 1960 (Part 2) in McGann v. United States

    Earl Warren:

    You may continue.

    Theodore George Gilinsky:

    Mr. Chief Justice, may it please the Court.

    I think it’s important to remember in this particular case that this petitioner has had the opportunity to attack his Maryland sentence a number of times and which he has done and that this had been heard both in Maryland, it has been heard numerous times in the Court of Appeals and the certiorari has been denied here.

    Potter Stewart:

    And that’s been heard on the merits, has it?

    Theodore George Gilinsky:

    It had been heard on the — this meritorious problem that he is raising in Maryland about double jeopardy.

    Potter Stewart:

    That’s only the merit of that attack.

    Theodore George Gilinsky:

    Yes.

    That has been heard.

    Potter Stewart:

    His motion was not dismissed —

    Theodore George Gilinsky:

    Because of the New York sentence –-

    Potter Stewart:

    — or was not — failed to be considered by any — by reason of any concurrent sentence in this case.

    Theodore George Gilinsky:

    Oh no — no, that’s not right.

    Let me make it clear.

    The very first time he raised it in Maryland, the very first time he raised it in Maryland, and this argument was made because in Maryland you see he also has concurrence sentences.

    Potter Stewart:

    Imposed by the same trial judge?

    Theodore George Gilinsky:

    Yes.

    In other words, there are three concurrence sentences also in Maryland.

    Potter Stewart:

    Yes.

    Theodore George Gilinsky:

    There’s a Dyer Act which he has never contested.

    There’s this five-year sentence and then there’s the 20 and the first time he made the argument in Maryland, the judge said to him, “Well, unless you can show that you’re going to get released here in Maryland because you have — you even haven’t finish your five year sentence here.”

    Potter Stewart:

    And he was not attacking that sentence.

    Theodore George Gilinsky:

    And he was not attacking that sentence and he was not attacking the Dyer Act, but subsequently, he has raised in Maryland — a number of times in Maryland the problem of the duplication as he would call of offenses here to which he had pled and this can be raised both there and then subsequently in the Court of Appeals, he has had lawyers appointed.

    As a matter of fact, in the — just the Maryland litigation, he has had a total five of lawyers representing him at various stages so that — that Maryland part and that is the problem by the way which is also here again pending and now under the label of coram mobis that it is exactly the same thing which he had — that’s pending in this Court, a petitioner’s pending in this Court, but he had previously raised the same thing under 2255 and certiorari.

    How long?

    (Inaudible)

    Theodore George Gilinsky:

    No.

    It was filed I believe, it was filed November 16, 1959.

    We filed a memorandum in that case because we do not think it was properly handled below on another unrelated problem.

    How long was he exactly sentenced?

    Theodore George Gilinsky:

    He was first sentenced in 1954 of August.

    And he was heard to by the —

    Theodore George Gilinsky:

    He has served the two five year sentences.U

    Now as part of Maryland, (Inaudible)

    Theodore George Gilinsky:

    That’s correct.

    In here — and in that context though, he has already more than once attacked the Maryland sentence.

    Potter Stewart:

    And his attack has been considered on the merits?

    Theodore George Gilinsky:

    That’s correct without any —

    Potter Stewart:

    And —

    And the attack that happened to —

    Potter Stewart:

    Yes.

    Theodore George Gilinsky:

    Yes, and that’s what I mean.

    After — after that limitation had expired so that he has had a meritorious hearing in Maryland unrelated to any concurrent of them on the question of whether or not he should be released.

    William J. Brennan, Jr.:

    And that’s amounting to say —

    Theodore George Gilinsky:

    And that is not —

    William J. Brennan, Jr.:

    — what did he tell you, it s now pending?

    Theodore George Gilinsky:

    No, that has been here before under 2255.

    He has raised the same thing again under coram nobis.

    Potter Stewart:

    And before, did you tell us that certiorari was denied?

    Theodore George Gilinsky:

    Certiorari was denied twice in the Maryland jurisdiction, twice previous to that — twice in the Maryland jurisdiction.

    It has been denied in this Court and the third one from Maryland is pending here.

    Potter Stewart:

    So whatever the theoretical difficulties might be in some hypothetical case, in this case, this man is serving a 20-year sentence —

    Theodore George Gilinsky:

    Which have been reviewed a number —

    Potter Stewart:

    Which has been reviewed on 2255 —

    Theodore George Gilinsky:

    I don’t say that.

    Potter Stewart:

    — and upheld.

    Theodore George Gilinsky:

    Right correct.

    Now, I think it’s important to understand that the distinction between this case and Heplin matter, we — as we read the Heplin case, this — part of the statute in the concurring opinion which was italicized was claiming the right to be released.

    And we think this is a more just wording in the statute because of the background of this statute.

    This statute which was inaugurated by the judicial conference because of the problems in habeas corpus had a long history of committee reports and conference reports.

    Now, we have attached part of this to our brief here.

    Theodore George Gilinsky:

    The whole of the act was considered in United States versus Hayman.

    So for our purposes, I would — I’d just narrowly considered just this language.

    At the very first hearing of the committee, this is before it got to the judicial context, the habeas corpus committee, this language read claiming that the judgment is void, claiming that the judgment is void, in that context, this particular action here would have been cognizable.

    We think it is significant that before it was even submitted to the judicial conference, before that, this wording was deliberately changed to the wording we now find in the statute namely claiming the right to be released.

    Now we think it is clear why it was changed.

    It is because the habeas corpus committee and the judicial conference were truly concerned with the habeas corpus problem.

    Habeas corpus has traditionally and always been utilized only and solely when a person can claim the right to be released.

    And this was one of the problems, for example in McNally versus Hill where they — the petitioner claimed the — some parole rights.

    At that time, this Court went into the problem of habeas corpus and concluded that habeas corpus as a remedy had never been used, had never been used anytime other than when a person can claim the right to be released.

    Charles E. Whittaker:

    May I ask you if you could read what Section 2255 contemplate the existence of what was in (Inaudible) to contemplate more than he wanted?

    Theodore George Gilinsky:

    I’m not sure I understand.

    If you mean does it contemplate that there can be three sentences against the — the petitioner in this —

    Charles E. Whittaker:

    I mean the right to prove his (Inaudible)?

    Theodore George Gilinsky:

    I think —

    Charles E. Whittaker:

    Does that mean from the second term?

    Theodore George Gilinsky:

    It could be read that way except for two things.

    Number one, the statute which was drawn by men who were aware of the problem did not say that.

    Number two, the history of habeas corpus from which this language obviously comes has never been so interpreted.

    Charles E. Whittaker:

    Now that point will have to tell us to reach in with the position by 2255 was to (Inaudible) and some may (Inaudible) want to do this and another who with this one do this that the motion in that petition can only be made in the question of importance.

    However, they never enacted the status of the man who’s taken to his freedom as to think he’s from relief unless he can show that all (Inaudible) Court to do that.

    Theodore George Gilinsky:

    That’s correct.

    Charles E. Whittaker:

    Therefore, I want to (Inaudible) you to reading that 2255 language contemplates that as through this sentence and that all he has control and further control is a (Inaudible) under the section’s challenging that question.

    Theodore George Gilinsky:

    I think I — I must answer no for this reason.

    Taking this case as an example in Maryland, in Maryland alone, this petitioner had three sentences not one, three.

    I think that in Maryland he could have attack from the very beginning, he could have made an allegation attacking all three under 2255 so that — I cannot say that this contemplates only one sentence.

    Charles E. Whittaker:

    And that should have said one jurisdiction in sentence one to six.

    Theodore George Gilinsky:

    This is a — I — I don’t believe this — I don’t believe — well, first of all, I find nothing about this, so I’m — there’s nothing in the reports about this.

    So it’s purely based upon the experience of the cases.

    Charles E. Whittaker:

    The habeas corpus just implied some of the rules.

    Theodore George Gilinsky:

    Yes.

    Theodore George Gilinsky:

    Habeas corpus would — it wouldn’t make any difference where the jurisdictions were because in habeas corpus and all the judgments would be there.

    Of course to result in habeas corpus I should say would be exactly what we have in this case because in habeas corpus what would happen is the Court would look at the sentences and say, “Well, here you have a 20-year sentence which is good and we will not consider the rest.”

    In other words, as a matter very — being very practical, this petitioner would be treated exactly the same in habeas corpus if he — he could bring that action.

    Charles E. Whittaker:

    Except he will have a right to be heard.

    Theodore George Gilinsky:

    No.

    He would have a right to be heard if he had facts outside the record.

    The Maryland problem has never been that he and if he had this problem in Maryland, we might have a different situation.

    The Maryland problem has never been facts outside the record.

    He’s never denied that he robbed the bank or any of these problems in Maryland.

    The problem in Maryland had been solely a — a legal problem.

    And first of all, he raised the question of whether it was this air force bank.

    He raised the question of whether it was an insured bank.

    The next time he raised the question which is now he talks about — of the difference between the territorial jurisdiction count and the bank robbery count.

    So that in either of these cases you see, he — he didn’t require a personal hearing.

    This was a legal problem.

    Charles E. Whittaker:

    But what determines (Inaudible) It has to read and to provide the object, time and other qualities and prior to this in use of this in the opposite to take over this section.

    That 23 (c) talks of the time the fact it was lain that is now come to differentiate this with the entire (Inaudible)

    Theodore George Gilinsky:

    He said that he told this to the Assistant United States Attorney.

    He clearly — I — I give this petitioner more credit than to say had this petitioner here delved in the law long enough to recognize that he — he is not going to attack the Maryland sentence in New York and I do not read to him as in the same act.

    I think he understands that very well.

    I don’t think he is saying that.

    He says that this — this is part of his allegation of the background of why the Assistant United States Attorney told him that she would ask for a light sentence.

    It was because he had his notion, originally, he says that he could get off in Maryland.

    Charles E. Whittaker:

    What had come in when you do (Inaudible)

    Theodore George Gilinsky:

    Well, I do not read the petition that way.

    I read the petition that he’s told he wants to be heard on whether or not this assistant told him that she would give — she would ask for a light sentence.

    And that’s what I believe sincerely is what he wants to be heard of.

    If he wants to be heard on something outside the eastern — of the facts outside the Eastern District then we have certainly muddled the whole 2255 problem because that’s exactly what we had 2255 to avoid, was this problem of getting things from outside.

    As I say that we — we think both the language, the background of this statute and the cases that have followed it have all been consistent in holding that in these circumstances this statute is not applicable.

    May I spend a few moments on the second question which we do not really believe is reached, the question is, assume we have only a 12-year sentence, assume that is the only one so that we don’t get into the other problems, has this petitioner raised the question sufficiently to grant him a hearing?

    Theodore George Gilinsky:

    We think it is significant that of the two facets of this problem, one of the things that he has said was that the Court originally denied him the right to withdraw his plea because he says in his petition that he knew at that time that he had been, as he used the word, tricked, tricked.

    Now we suggest this means that this petitioner knew of his remedies.

    As a matter of fact, he had a lawyer at that time which he has never said anything about.

    He was warned of his rights.

    He was told by the Court that the Court could give him the sentence.

    He — two days after this sentence, he did attack the Southern District and he did not attack the Eastern District at all so that he — here is a man who knew if we — if we believe his allegations, knew of something which he says is wrong and has deliberately not done anything about it and we suggest that it’s — it’s clear why because he didn’t get a maximum sentence.

    He got only a concurrent sentence.

    He got a problem which was not going to interfere with him in the least.

    Now we think that is the part at least of the problem on the merit.

    The other part of course is that there is a clear record in the Eastern District of New York showing that he was warned.

    Number one, showing in that the Court told him that the Court could enter the sentence.

    If we are to disregard all of these safeguards, I suppose it’s true, then.

    It is not just because he had an attorney as we would, but all of this were — and he doesn’t challenge this by the way in the petition.

    He doesn’t challenge any of these record facts.

    He merely says that the Assistant United States Attorney said that she would ask for a light sentence and she did not.

    It’s nowhere alleged that she promised him a light sentence, but — that she would ask for it.

    As a result, we feel first in summary that this petitioner is entitled to no relief on any circumstances regardless of the statutory problem because of the general policy of not deciding this type of problem where this is no — no benefit at all can result to this that this particular statute as grafted and as interpreted and for its purpose is not applicable to this type of problem.

    And that finally, on the merit, he has not really alleged sufficient grounds to entitle him to a hearing.

    Earl Warren:

    Mr. Davis.

    Thomas Homer Davis:

    If the Court, please, briefly one thing the Government contends is, this man has not taken advantage of all his rights as a good lawyer would do.

    You must remember this man’s in the Leavenworth penitentiary, he is a colored man.

    He has no right to take the law but to himself.

    He reads these books in the library so many hours in evening and he has educated himself through all these proceedings and it (Inaudible) who’s in the Government in my opinion to hold him to strict lines of procedural matters.

    He is entitled to the benefit of — of some leniency here, like the courts to give him a habeas corpus.

    Now, this question of this statute sees him claiming the right to be released.

    This statute — the Court is applying habeas corpus under McNally verse Hill that you must show the right to be released.

    This just says claiming a right to be released.

    Suppose he puts in his motion to vacate and he says I claim the right to be released for these grounds, suppose that he doesn’t have and can’t show that he is entitled to release.

    This statute says that a hearing should be had.

    And this statute then says that findings of fact and conclusions of law should be made and then when you come up through your Circuit and through your District Court or some court has made findings of fact and conclusions of law.

    Thomas Homer Davis:

    Now in the government’s brief, they say he’d be entitled to no relief on parole, on good time.

    Well, who’s deciding all these things whether he’s entitled to any of these things because the man has never had a hearing.

    Does the Court when it gets one of these motions have to go through the record write to United States Attorney and say, “Now, if we granted this, would this affect this man’s parole rights on the — on the second sentence?

    Would it affect this good time rights?

    You’re having a hearing without the man being present because you’re asking the Court to make all these decisions and there’s no finding of fact, no conclusions of law, no hearing as this statute says a judicial hearing.”

    Now, in the concurring opinion, this Court in the Heplin case, the Court says that they don’t leave the majority concurrent opinion that this question hearing at anytime.

    All they say is — that that means res judicata doesn’t apply or latches.

    Well, if the Congress intended that that was what they meant, why didn’t they say it?

    Why did they say a hearing?

    Why do they use the word hearing?

    In the Hayman case, the Court says, “This is purely a statute to afford the man the same right he had in habeas corpus.

    In another section of the Hayman case, they say, “This is an independent action, collateral attack on the judgment.”

    So if it is, now the question he says here about this man claiming he’s — he has denied the right to withdraw his motion, his plea of guilty.

    He went in to the Eastern District Court.

    He filed the motion and he asked to withdraw he plea of guilty.

    The Court never heard a word of testimony. The man never got to open his mouth.

    It was denied arbitrarily from the bench and true that that is the matter ordinarily you have to raise by appeal and it’s the discretion — that is the Court, but the abuse of a Court as to discretion is a matter you can reach and hear.

    We have a statute that says — 2255 says that a court on — under 2255 can grant a motion for new trial.

    But what does it mean that it can grant a motion for a new trial?

    Does it mean that the old theory that you had to appeal or what is it a new trial granted?

    Why — why do you grant a motion for a new trial?

    You grant a motion for a new trial if something has occurred at the trial that’s irreversible error.

    You also can like you do in habeas corpus, set aside that he wasn’t advised his rights to counsel, but how broader have they gone?

    Why they did say that he’d have, the Court under 2255 would have a right to grant a motion for a new trial?

    What they put it in there for?

    Charles E. Whittaker:

    Mr. Davis —

    Thomas Homer Davis:

    Yes.

    Charles E. Whittaker:

    May I ask you please, sir?

    Thomas Homer Davis:

    Yes.

    Charles E. Whittaker:

    What issue of fact as distinguished from one of law is tendered by the motion that requires a hearing, in a few words, please?

    Thomas Homer Davis:

    Yes.

    Well, just this that there was collusion between the assistant United States Attorneys through the Southern District and the Eastern District.

    This man was in New York in jail.

    He wouldn’t plead guilty.

    They kept bringing him back in before the Court.

    So he alleges — they — they got together and by collusion, they persuaded him that if he’d plead guilty, they would give him a lenient sentence — recommend a lenient sentence and the sentence in effect wouldn’t be over five years long and they kept working at him.

    So the Southern District Attorney comes over and he does it.

    Then the Southern District Attorney says, “Now, I’ll get the girl from the Eastern District and she’ll come down here and make the same deal.”

    She did come down but he says we made the deal.

    Now on 2255, he’s trying to get the Court there to hold that he was coerced and placed under duress to change his attitude from willingness — willingly entering pleas of guilty by these promises and it was that duress and coercion and collusion of those two Assistant United States Attorneys, that’s what he wants to go back to that Court and have a hearing on.

    He wants to get back there and get on the witness stand and testify about those things under 2255.

    Charles E. Whittaker:

    He doesn’t allege that it was any statement that the sentence would be under five years, does he?

    Thomas Homer Davis:

    He doesn’t but it’s — it — it follows he’s got it in his motion to that effect.

    That’s what he meant.

    Charles E. Whittaker:

    Well, that’s a conclusion, isn’t it?

    Does that tender an issue of fact on which evidence is needed?

    Thomas Homer Davis:

    Right.

    If you — if you allege it, two Assistant of United States Attorneys of two districts persuade you to change your mind about entering a plea of guilty by promises made, I think that you’ve got a question of fact there and not a conclusion.

    Charles E. Whittaker:

    The promise is unless on who bothers that conclusion (Inaudible) and that’s the only promise as alleged

    Thomas Homer Davis:

    What difference would it make what the promise was if by any kind of a promise, he changed his mind of not entering a plea and entered a plea?

    It wouldn’t make any difference whether it’s fulfilled or not.

    If you change the mind of a man who says I’m not guilty and you get him to change his mind by any kind of a promise silly or otherwise, you have used duress on that man in my opinion.

    Charles E. Whittaker:

    Even though the promise is kept.

    Thomas Homer Davis:

    Even though the promise is kept, it would have nothing to do with it in my opinion.

    If you change a man, who’s got a right to plead not guilty and if you induce him by any kind of a threat, promise or coercion and you change his mind and he does something he didn’t intend to do in the first place, you have violated the Constitution in my opinion.

    I thank the Court very much for the extra time.

    Earl Warren:

    Well, Mr. Davis before you sit down on behalf of the Court I should like to thank you for accepting this assignment to represent this indigent defendant without compensation.

    The Court realizes what an inconvenience it is to come from your part of the country to this part on a mission of this kind and we’re grateful to you.

    We’re comforted by the fact that the lawyers will do that.

    Thomas Homer Davis:

    It is a privilege and an honor, Your Honor.

    Earl Warren:

    And Mr. Gilinsky, I want thank you of course for your very earnest representation of – for the people.