Motion to Vacate
Sentence
7206- Fraud and
False Statements: Motion To Vacate Sentence
[63-2
USTC ¶9798]Russell L. Hayes, Appellant v.
United States of America
, Appellee
(CA-5),
U. S. Court of Appeals, 5th Circuit, No. 20573, 11/1/63, Reversing and
remanding unreported District Court
[1954 Code Sec. 7206(1) and Judicial Code Sec. 2255]
Res judicata doctrine: Prior denial of application to vacate
conviction.--A District Court decision, which denied a second
application for vacation of a conviction for filing false income tax
returns on the grounds of res judiciata, is reversed in light of the
Supreme Court's decision in Sanders v. U. S. The Supreme Court in
Sanders held that if factual issues were raised on the prior
application, the prior denial is an adjudication on the merits only if
(1) the prior application was denied on the basis that the files and
records conclusively resolved the issues, or (2) an evidentiary hearing
was held. In the instant case, the appellant's charge--that the district
judge forced court-appointed counsel on him when he already had retained
his own counsel--raised a substantial question as to denial of due
process and constitutional rights. This was a factual issue that could
not be resolved on the files and records of the case, and there had been
no hearing to resolve this factual issue.
Russell
L. Hayes,
Seargoville
,
Tex.
, for appellant. Carl Walker, Jr., Assistant United States Attorney,
Houston
,
Tex.
, for appllee.
Before
HUTCHESON and BROWN, Circuit Judges, and SIMPSON, District Judge.
[Prior
Proceedings]
BROWN,
Circuit Judge:
On
March 8, 19
58, Appellant was found guilty of unlawfully preparing and submitting
false income tax returns in violation of 26 USCA §7206(1) and making
fraudulent claims against the United States in violation of 18 USCA §287
and was sentenced to a total of six years' imprisonment. On
May 7, 19
58, Appellant's motion to vacate sentence under 18 USCA §2255 was
denied, and, without applying to the District Court, he addressed to
this Court a petition for leave to proceed on appeal in forma pauperis.
We denied this petition because of failure first to apply to the
District Court. Hayes v. United States, 5 Cir., No. 136, decided
May 28, 19
58. The District Court then denied Appellant's application for leave to
appeal in forma pauperis on the ground that the appeal was without merit
and was not taken in good faith. Appellant's appeal from this action was
subsequently dismissed by this Court on a finding that the issues
presented had no merit, and the appeal was plainly frivolous. Hayes
v. United States, 5 Cir., 1958, 258 F. 2d 400, cert. denied, 358
U. S.
856, 79 S. Ct. 87, 3 L. Ed. 2d 89. Subsequently about
February 14, 19
63, Appellant filed a second motion under 18 USCA §2255, which the
District Court dismissed on
April 10, 19
63. This is an appeal in forma pauperis from that dismissal, pursuant to
leave granted by the District Court on
April 25, 19
63.
[Supreme
Court Decision]
Since
the ground urged for vacation of sentence in the instant
application--alleged action of the District Judge in forcing
court-appointed counsel on Appellant when he had counsel of his own
choosing resulting in a denial of due process--was urged in the May 1958
application, the central question here presented is the degree of weight
which must be accorded the denial of the prior application. Since this
Court had affirmed his prior action in refusing to allow appeal in forma
pauperis on the ground that the appeal was without merit, the District
Judge quite naturally assumed that the prior denial was controlling:
"Section
2255 provides that the sentencing court shall not be required to
entertain a second or successive motion for similar relief on behalf of
the same prisoner. IT IS THEREFORE ORDERED that the motion be and it is
hereby dismissed."
But
neither the District Judge, nor earlier this Court, could reckon with
what was shortly to occur. For 19 days later the Supreme Court in a
far-reaching "guideline" decision articulated basic rules
governing the Federal District Courts in disposing of successive motions
under 18 USCA §2255. Sanders v.
United States
, 1963, .... U. S. ...., 83
S. Ct.
...., 10 L. Ed. 2d 148, decided
April 29, 19
63. Holding, as we had many times done, that res judicata has no
application in proceedings under §2255, the Sanders decision
declares broadly that an adverse determination on a prior application of
a ground urged in a subsequent application is not controlling unless the
prior determination was on the merits and unless the ends of justice
would not be served by reaching the merits of the present application.
The Court further held in Sanders that if factual issues were
raised on the prior application, the prior denial is an adjudication on
the merits only if (1) the prior application was denied on the basis
that the files and records conclusively resolved the issues or (2) an
evidentiary hearing was held. ....
U. S.
, at ...., 83
S. Ct.
at ...., 10 L. Ed. 2d at 162.
[Reversed]
While
we ought not now to express any final conclusions as to these, we think
the Appellant's charge that the District Judge for some reason forced
court-appointed counsel on him when he had already retained counsel
presented two serious things. First, it raised a factual issue of the
kind that cannot here be conclusively resolved from the files and
records of this case. (Nor was it earlier resolved on such files,
records, etc.) And second, if the facts are established to be what
Appellant alleges they are, this raises a substantial question whether
this amounted to a denial of due process and fundamental constitutional
rights. Since res judicata, as such, has no application in §2255
proceedings, our dismissal of Appellant's previous appeal, other than
having the effect of leading the District Judge into denying this
application, is likewise now of no legal consequence. No hearing has
ever been held to resolve this factual issue having such potential
importance. We therefore reverse and remand for reconsideration in light
of Sanders v.
United States
, supra.
REVERSED AND REMANDED.