United State v. Morgan/Opinion of the Court

by Stanley Forman Reed

United States Supreme Court

346 U.S. 502

United State  v.  Morgan

 Argued: Oct. 19, 1953. --- Decided: Jan 4, 1954

This review on certiorari requires us to decide whether a United States District Court has power to vacate its judgment of conviction and sentence after the expiration of the full term of service.

On December 18, 1939, respondent pleaded guilty on a federal charge, in the Northern District of New York, and was given a four-year sentence which he served. Thereafter, in 1950, he was convicted by a New York court on a state charge, sentenced to a longer term as a second offender because of the prior federal conviction, ^[1] and is now incarcerated in a state prison.

As courts of New York State will not review the judgments of other jurisdictions on habeas corpus or coram nobis, People v. McCullough, 300 N.Y. 107, 110, 89 N.E.2d 335, respondent filed an application for a writ of error coram nobis and gave notice of a motion for the writ in the United States District Court where his first sentence was received. Both sought an order voiding the judgment of conviction. The ground was violation of his constitutional rights through failure, without his competent waiver, to furnish him counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. The District Court in an unreported decision treated the proceeding as a motion under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, ^[2] and refused relief because it had no jurisdiction as the applicant was no longer in custody under its sentence, citing United States v. Lavelle, 2 Cir., 194 F.2d 202, a controlling authority on that point. On appeal, the Court of Appeals reversed. It held that 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 did not supersede 'all other remedies which could be invoked in the nature of the common law writ of error coram nobis.' As it considered that the remedy sought was of that kind and the application justified a hearing because the error alleged was 'of fundamental character,' the Court of Appeals reversed and, without passing upon the sufficiency of the allegations, directed remand for further proceedings. United States v. Morgan, 2 Cir., 202 F.2d 67, 68. Deeming the decision to conflict with United States v. Kerschman, 7 Cir., 201 F.2d 682, we granted certiorari. 345 U.S. 974, 73 S.Ct. 1122.

The foregoing summary of steps discloses respondent's uncertainty in respect to choice of remedy. The papers are labeled as though they sought a common law writ of error coram nobis but the notice of the motion indicates that an order voiding the judgment is sought. In behalf of the unfortunates, federal courts should act in doing justice if the record makes plain a right to relief. ^[3] We think a belated effort to set aside the conviction and sentence in the federal criminal case is shown. We therefore treat the record as adequately presenting a motion in the nature of a writ of error coram nobis enabling the trial court to properly exercise its jurisdiction. Adams v. U.S. ex rel. McCann, 317 U.S. 269, 272, 63 S.Ct. 236, 238, 87 L.Ed. 268. ^[4] So treating the motion, Rule 35, Fed.Rules Crim.Proc., 18 U.S.C.A., allowing the correction of 'an illegal sentence at any time' is inapplicable. Sentences subject to correction under that rule are those that the judgment of conviction did not authorize. ^[5]

Since this motion in the nature of the ancient writ of coram nobis is not specifically authorized by any statute enacted by Congress, the power to grant such relief, if it exists, must come from the all-writs section of the Judicial Code. ^[6] This section originated in the Judiciary Act of 1789 ^[7] and its substance persisted through the Revised Statutes, § 716, and the Judicial Code, § 262, to its present form upholding the judicial power to attain justice for suitors through procedural forms 'agreeable to the usages and principles of law.' ^[8] If there is power granted to issue writs of coram nobis by the all-writs section, we hold it would comprehend the power for the District Court to take cognizance of this motion in the nature of a coram nobis. See, note 4, supra. To move by motion instead of by writ is purely procedural. The question then is whether the all-writs section gives federal courts power to employ coram nobis.

The writ of coram nobis was available at common law to correct errors of fact. ^[9] It was allowed without limitation of time for facts that affect the 'validity and regularity' of the judgment, ^[10] and was used in both civil and cirminal cases. ^[11] While the occasions for its use were infrequent, no one doubts its availability at common law. ^[12] Coram nobis has had a continuous although limited use also in our states. ^[13] Although the scope of the remedy at common law is often described by references to the instances specified by Tidd's Practice, see note 9, supra, its use has been by no means so limited. The House of Lords in 1844 took cognizance of an objection through the writ based on a failure properly to swear witnesses. See the O'Connell case, note 11, supra. It has been used, in the United States, with and without statutory authority but always with reference to its common law scope-for example, to inquire as to the imprisonment of a slave not subject to imprisonment, insanity of a defendant, a conviction on a guilty plea through the coercion of fear of mob violence, failure to advise of right to counsel. ^[14] An interesting instance of the use of coram nobis by the Court of Errors of New York is found in Davis v. Packard, 8 Pet. 312, 8 L.Ed. 957. It was used by the Court of Errors, and approved by this Court, of correct an error 'of fact not apparent on the face of the record' in the trial court, to wit, the fact that Mr. Davis was consul-general of the King of Saxony and therefore exempt from suit in the state court.

This Court discussed the applicability of a motion in federal courts in the nature of coram nobis in United States v. Mayer, 235 U.S. 55, 67, 35 S.Ct. 16, 18, 59 L.Ed. 129. There a convicted defendant alleged he discovered through no fault of his, only after the end of the term in which he was convicted, misconduct of an assistant United States attorney and concealed bias of a juror against him, the defendant. This Court refused to direct consideration of the motion after the term expired because the remedy, if any, was by writ of error or motion for new trial. As it was not applicable in the circumstances of the Mayer case, this Court refused to say whether a motion coram nobis would ever lie in federal courts. ^[15] This Court has approved correction of clerical errors after the term. Wetmore v. Karrick, 205 U.S. 141, 154, 27 S.Ct. 434, 438, 51 L.Ed. 745. However, we have not held that the writ of coram nobis or a motion of that nature was available in the federal courts.

In other federal courts than ours, there has been a difference of opinion as to the availability of the remedy. Chief Justice Marshall in Strode v. Stafford Justices, 23 Fed.Cas.No.13,537, p. 236, 1 Brock. 162, overruled an objection to a writ of error coram nobis to set aside a fourteen-year-old judgment because of the death of one party prior to its rendition. In explication, the Chief Justice pointed out that the Judiciary Act of 1789, 1 Stat. 84, § 22, limited to five years the bringing of any writ of error and forbade it 'for any error in fact.' In allowing the coram nobis, he held that the section showed the writ of error referred to was a writ on appeal and therefore the error in fact could not be examined except by coram nobis. The Courts of Appeals for the Sixth and Ninth Circuits have held that motion available for claims of insanity. ^[16] The Third and Fourth Circuits have made similar rulings in cases similar to this. ^[17] The Fifth Circuit remanded for inquiry into a movant's allegation upon a similar motion that witnesses against him had been coerced by officers to commit perjury in testifying against him. ^[18] In many other cases federal courts have taken cognizance of motions in the nature of coram nobis but denied them because the circumstances did not make coram nobis available. ^[19] There are few cases where the power to consider a motion for coram nobis relief has been denied. ^[20]

The contention is made that § 2255 of Title 28, U.S.C., 28 U.S.C.A. § 2255, providing that a prisoner 'in custody' may at any time move the court which imposed the sentence to vacate it, if 'in violation of the Constitution or laws of the United States,' should be construed to cover the entire field of remedies in the nature of coram nobis in federal courts. We see no compelling reason to reach that conclusion. In United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 272, we stated the purpose of § 2255 was 'to meet practical difficulties' in the administration of federal habeas corpus jurisdiction. We added: 'Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions.' We know of nothing in the legislative history that indicates a different conclusion. We do not think that the enactment of § 2255 is a bar to this motion, and we hold that the District Court has power to grant such a motion.

Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice. There are suggestions in the Government's brief that the facts that justify coram nobis procedure must have been unknown to the judge. Since respondent's youth and lack of counsel were so known, it is argued, the remedy of coram nobis is unavailable. One finds similar statements as to the knowledge of the judge occasionally in the literature and cases of coram nobis. ^[21] Such an attitude may reflect the rule that deliberate failure to use a known remedy at the time of trial may be a bar to subsequent reliance on the defaulted right. ^[22] The trial record apparently shows Morgan was without counsel. United States v. Morgan, 2 Cir., 202 F.2d 67, 69. He alleges he was nineteen, without knowledge of law and not advised as to his rights. The record is barren of the reasons that brought about a trial without legal representation for the accused. ^[23] As the plea was 'guilty' no details of the hearing appear. Cf. DeMeerleer v. Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584. In this state of the record we cannot know the facts and thus we must rely on respondent's allegations.

In the Mayer case this Court said that coram nobis included errors 'of the most fundamental character'. ^[24] Under the rule of Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, decided prior to respondent's conviction, a federal trial without competent and intelligent waiver of counsel bars a conviction of the accused. ^[25] Where it cannot be deduced from the record whether counsel was properly waived, we think, no other remedy being then available and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of coram nobis must be heard by the federal trial court. ^[26] Otherwise a wrong may stand uncorrected which the available remedy would right. Of course, the absence of a showing of waiver from the record does not of itself invalidate the judgment. It is presumed the proceedings were correct and the burden rests on the accused to show otherwise. Johnson v. Zerbst, supra, 304 U.S. at page 468, 58 S.Ct. 1024; Adams v. U.S. ex rel. McCann, supra, 317 U.S. at page 281, 63 S.Ct. 242; cf. Darr v. Burford, 339 U.S. 200, 218, 70 S.Ct. 587, 597.

Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. ^[27] As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid.

Affirmed.

Mr. Justice MINTON, with whom The CHIEF JUSTICE, Mr. Justice JACKSON and Mr. Justice CLARK join, dissenting.

Notes

1. New York Penal Law, McK.Consol.Laws, c. 40, § 1941.
2. 28 U.S.C. § 2255, 28 U.S.C.A. § 2255:
3. Darr v. Burford, 339 U.S. 200, 203-204, 70 S.Ct. 587, 589, 590, 94 L.Ed. 761:
4. Such a motion is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil Proceeding. Kurtz v. Moffitt, 115 U.S. 487, 494, 6 S.Ct. 148, 149, 29 L.Ed. 458. While at common law the writ of error coram nobis was issued out of chancery like other writs, Stephens, Principles of Pleading, 3d Amer. ed., 142, the procedure by motion in the case is now the accepted American practice. Pickett's Heirs v. Legerwood, 7 Pet. 144, 147, 8 L.Ed. 638; Wetmore v. Karrick, 205 U.S. 141, 151, 27 S.Ct. 434, 436, 51 L.Ed. 745; United States v. Mayer, 235 U.S. 55, 67, 35 S.Ct. 16, 18, 59 L.Ed. 129. As it is such a step, we do not think that Rule 60(b), Fed.Rules Civ.Proc., 28 U.S.C.A., expressly abolishing the writ of error coram nobis in civil cases, applies. This motion is of the same general character as one under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255. See Reviser's Note. Cf. United States v. Kerschman, 7 Cir., 201 F.2d 682, 684. And see contra to the above note, People v. Kemnetz, 296 Ill.App. 119, 15 N.E.2d 883.
5. United States v. Bradford, 2 Cir., 194 F.2d 197, 201; see also Tinder v. United States, 345 U.S. 565, 73 S.Ct. 911.
6. 28 U.S.C. § 1651(a), 28 U.S.C.A. § 1651(a): 'The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to the usages and principles of law.'
7. 1 Stat. 81-82:
8. See United States Alkali Export Ass'n v. United States, 325 U.S. 196, 201, 65 S.Ct. 1120, 1124, 89 L.Ed. 1554; cf. United States v. Beatty, 232 U.S. 463, 467, 34 S.Ct. 392, 394, 58 L.Ed. 686.
9. 2 Tidd's Practice (4th Amer. ed.) 1136-1137:
10. Stephens, Principles of Pleading (3d Amer. ed.), 143; 2, Bishop, New Criminal Procedure (2d ed.) 1181.
11. See citations in n. 10, and United States v. Plumer, 27 Fed.Cas.No.16,056, pp. 561, 572, Mr. Justice Clifford; O'Connell v. The Queen, 2 Cl. & Fin. (House of Lords Reps.) 155, 233, 252.
12. Archbold (7th ed., Chitty, 1840) 350, 389; 1 Holdsworth, History of English Law (1903) 224.
13. A collection of these cases appears in an article by Abraham L. Freedman, Esq., 3 Temple L.Q. 365, 372. See Bronson v. Schulten, 104 U.S. 410, 416, 26 L.Ed. 797.
14. Ex parte Toney, 11 Mo. 661; Adler v. State, 35 Ark. 517; Sanders v. State, 85 Ind. 318; Hogan v. Court, 296 N.Y. 1, 9, 68 N.E.2d 849. See also a discussion of the New York cases by Judge Stanley H. Fuld, The Writ of Error Coram Nobis, New York L.J. issues of June 5, 6, 7, 1947; note, 34 Cornell L.Q. 596. Spence v. Dowd, 7 Cir., 145 F.2d 451; cf. Hysler v. Florida, 315 U.S. 411, 316 U.S. 642, 62 S.Ct. 688, 86 L.Ed. 932; Taylor v. Alabama, 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed. 1935; People ex rel. v. Green 355 Ill. 468, 189 N.E. 500.
15. '* * * and even if it be assumed that in the case of errors in certain matters of fact, the district courts may exercise in criminal cases-as an incident to their powers expressly granted-a correctional jurisdiction at subsequent terms analogous to that exercised at common law on writs of error coram nobis (See Bishop, New Crim.Proc., 2d ed., § 1369), as to which we express no opinion, that authority would not reach the present case. This jurisdiction was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already stated, in those cases where the errors were of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid.' 235 U.S. at page 69, 35 S.Ct. at page 19. See also Bronson v. Schulten, 104 U.S. 410, 416, 26 L.Ed. 797; Phillips v. Negley, 117 U.S. 665, 673, 6 S.Ct. 901, 904, 29 L.Ed. 1013.
16. Allen v. United States, 162 F.2d 193; Robinson v. Johnston, 118 F.2d 998, 1001, vacated and remanded for further proceedings 316 U.S. 649, 62 S.Ct. 1301, 86 L.Ed. 1732.
17. Roberts v. United States, 4 Cir., 158 F.2d 150; United States v. Steese, 3 Cir., 144 F.2d 439. See also United States v. Monjar, D.C., 64 F.Supp. 746.
18. Garrison v. United States, 154 F.2d 106, 107; cf. Pierce v. United States, 154 F.2d 848.
19. Tinkoff v. United States, 7 Cir., 129 F.2d 21; Barber v. United States, 4 Cir., 142 F.2d 805; Spaulding v. United States, 6 Cir., 155 F.2d 919; United States v. Moore, 7 Cir., 166 F.2d 102; Crowe v. United States, 4 Cir., 169 F.2d 1022; Bice v. United States, 4 Cir., 177 F.2d 843; United States v. Rockower, 2 Cir., 171 F.2d 423; Farnsworth v. United States, 91 U.S.App.D.C. 121, 198 F.2d 600. Cf. Strang v. United States, 5 Cir., 53 F.2d 820, 821.
20. United States v. Kerschman, 7 Cir., 201 F.2d 682; Gilmore v. United States, 10 Cir., 129 F.2d 199.
21. 56 Yale L.J. 197, 233; 34 Cornell L.Q. 598; Robinson v. Johnston, 118 F.2d 998, 1001, vacated and remanded for further proceedings 316 U.S. 649, 62 S.Ct. 1301, 86 L.Ed. 1732.
22. Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 422; see Gayes v. New York, 332 U.S. 145, 149, note 3, 67 S.Ct. 1711, 1713, 91 L.Ed. 1962; note, 58 A.L.R. 1286.
23. Until Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, there was no uniform practice in the federal courts to have the orders show the judges' conclusion that there had been a competent waiver of counsel. Cf. United States v. Steese, 3 Cir., 144 F.2d 439, 443.
24. See note 15, supra. Barber v. United States, 4 Cir., 142 F.2d 805, 807; Bronson v. Schulten, 104 U.S. 410, 416, 26 L.Ed. 797; Powell, Appellate Proceedings (1872) 108; Black, Judgments (2d ed.) 460.
25. See also Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Fed.Rule Crim.Proc. rule 44.
26. Cf. Brown v. Allen, supra, 344 U.S. at pages 485-486, 73 S.Ct. 421-422.
27. Fiswich v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196; note, 59 Yale L.J. 786.