Calvin Fennell v. United States, 313 F.2d 941, 10th Cir. (1963)
Calvin Fennell v. United States, 313 F.2d 941, 10th Cir. (1963)
2d 941
This is an appeal from the District Court's denial of Calvin Fennell's second
motion to vacate the judgment and sentence imposed pursuant to his jury
conviction for violations of the federal narcotic laws and for conspiracy. The
District Court's denial of this second or successive motion under Section 2255,
Title 28 U.S.C., is based upon the premise that the movant "raises no new
substantial issues not covered by the prior motion."
After entering upon service of his sentence, the petitioner filed in the District
Court a series of papers which the trial court treated as a motion to vacate under
Section 2255, and granted leave to proceed in forma pauperis. In substance, the
writings complained of his conviction as being obtained by the use of fraud and
perjury on behalf of the prosecutor and government agent; improper joinder of
offenses and co-defendants; arrest on one charge and indictment and trial on the
others; and insufficiency of the evidence to sustain the conviction. Upon a full
hearing, in which the petitioner appeared in person and by appointed counsel,
and in which he testified in his own behalf, the trial court denied the petition,
based upon findings of fact negating all of the allegations in his complaint.
A petition for rehearing and motion to appeal in forma pauperis was denied on
the grounds that it was frivolous and not taken in good faith. On petition to this
court, leave was granted to proceed in forma pauperis. The case was docketed
and the original record, including the transcript of the proceedings in the trial
court, were certified here. Upon consideration of the whole record, we were of
the opinion that the trial court's findings and conclusions of law were amply
supported by the evidence, and that the petitioner's contentions were frivolous.
An order was accordingly entered denying leave to proceed further in forma
pauperis and the appeal was dismissed.
This second motion under Section 2255 alleges a ground for relief not
specifically presented or decided on the former motion, namely, that while
deliberating on the petitioner's guilt or innocence, the jury left the jury room
twice to communicate with the presiding judge: first, to inquire concerning the
nature of the charge against the accused; and second, whether, if the jury found
the accused guilty, would the court "be lenient toward him."
Inasmuch as the grounds for relief asserted in this motion are not the same or
similar to those asserted in the former motion, the court was required to
entertain the motion for the purpose of determining, (1) whether for some
justifiable reason the present grounds were not asserted in the former motion;
and (2) if so, whether the files and records in the case showed any legal basis
for the relief sought. If they do, it was then incumbent on the trial court to hear
and decide the newly asserted issues. United States v. Jones, D.C., 194 F.Supp.
421, affm'd, 10 Cir., 297 F.2d 835; Barrett v. Hunter, 180 F.2d 510, 20
A.L.R.2d 965; see also Ray v. United States, 10 Cir., 295 F.2d 416.
We agree with the trial court that there were no new substantial issues
cognizable in this collateral proceedings. There is nothing in the record to
indicate or from which it can be inferred that the alleged communications
between court and jury were improper, but, if so, they were errors in the trial of
the case cognizable only on direct appeal. Humes v. United States, 10 Cir., 186
F.2d 875; Hahn v. United States, 10 Cir., 178 F.2d 11; Hurst v. United States,
10 Cir., 177 F.2d 894; United States v. Spadafora, 7 Cir., 207 F.2d 291. There
is nothing to indicate that the communications operated to deny or infringe the
constitutional rights of the accused so as to render the judgment of sentence
vulnerable to this collateral attack.