Appendix — Brackett v. United States
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| ~~ Supreme Court, U. S.
' FILED
APPENDIX . NOV 28 j977
QNTTAEE RODAK, JR., CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1977
No.7- FG B
WALTER S. BRACKETT,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001
INDEX
Opinion of the Court of Appeals en banc, July 18, 1977..
Order of the District Court denying petitioner’s Section
SS, ee
Judgment of the panel of the Court of Appeals, Decem-
RRR A EE Le Oe ee ee ar ee TTD
Statutes and regulations involved ....... i eiiedlaeentaaiablebaaisanen ”
Order of the Juvenile Court waiving jurisdiction, Oc-
I a cceeueenli
Trial transerigt, danuary Sl, 1061 ...................-.......-.........
Transcript of sentencing, March 10, 1961...
Order of the Court of Appeals respecting petitioner’s
request for writ of mandamus, May 13, 1974
Motion to Set Aside and Vacate Judgment of Convic-
rea Rs ING OR aa ca sateen nancennainemtilats
Opposition to Motion to Set Aside and Vacate Judgment
of Comvectiom, Ammust 6, TOE ...-....--...--2..2..<.22..0000s--..----
Order of the District Court denying petitioner’s request
to proceed in forma pauperis, August 29, 1974 _.........
Page
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Opinion of the Court of Appeals en banc, July 18, 1977
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 75-1495
UNITED STATES OF AMERICA
v.
WALTER S. BRACKETT,
Appellant
ON REHEARING EN BANC
Argued November 17, 1976
Decided July 18, 1977
Larry P. Ellsworth (appointed by this court) for
appellant.
Mark H. Tuohey, III, Assistant United States Attorney,
with whom Earl J. Silbert, United States Attorney and
John A. Terry, Assistant United States Attorney were
on the brief, for appellee.
Before: BAZELON, Chief Judge, WRIGHT, MCGOWAN,
TAMM, LEVENTHAL, ROBINSON, MACKINNON, ROBB and
WILKEY, Circuit Judges, sitting en bane.
Opinion for the court by Circuit Judge McGowan, in
which Circuit Judges WRIGHT, TAMM, LEVENTHAL, and
WILKEY join.
Separate concurring opinion by Circuit Judge MAc-
KINNON, in which Circuit Judge Ros joins.
A. 2
Dissenting opinion by Chief Judge BAZELON, in which
Circuit Judge ROBINSON joins.
McGowan, Circuit Judge: In this appeal from the
denial by the District Court of appellant’s motion for col-
lateral relief under 28 U.S.C. § 1255, the court en banc
addresses the single issue of the retrospective reach of
Dorszynski v. United States, 418 U.S. 424 (1974).
I
In 1960 appellant, then an inmate of the National
Training School for Boys, assaulted a guard in an at-
tempt to escape, and was indicted for first degree
murder. Juvenile Court jurisdiction was waived, and
appellant pleaded guilty in the District Court to man-
slaughter. On March 10, 1961, he came before the court
for sentencing. Since he was then 15 years of age and
therefore eligible for sentencing under the Federal Youth
Corrections Act, 18 U.S.C. § 5010, his counsel requested
that he be considered for sentencing under that statute.
After observing that youth “is not a mitigating circum-
stance” so far as the crime in question was concerned,
and that appellant and his co-defendant were “really
murderers” who had been allowed to plead guilty to a
lesser charge, and who had prior bad records, the judge
denied counsel’s request in these terms:
Now, obviously this is not a case for the Youth
Corrections Act, both because of the nature of the
offense and the nature of the prior records of these
defendants. The court is more interested in the fate
that befell the guard than it is in the future of
these two boys.
* * * *
Now, Brackett has shown vicious tendencies. In
addition to plotting the escape plan involved in this
i
A. 3
case, after he pleaded guilty he tried to escape from
the Marshal’s van. He needs incarceration in a
maximum security institution.
An adult sentence of 5 to 15 years was thereupon im-
posed ; and no appeal was taken.
On December 10, 1969, appellant filed in the District
Court a pro se motion under § 2255. Although counsel
was appointed for him, no action of any kind appears
to have been taken until 1974 when appellant pro se
filed a second § 2255 motion in this court. That was
returned to appellant with notification that the District
Court was the proper place for filing. When he again
submitted his motion to this court, it was referred to
the District Court for disposition, where it was denied
without a hearing as raising no meritorious issue. A di-
vision of this court affirmed without opinion.
Although a number of issues had been raised in the
District Court and on appeal, appellant’s petition for re-
hearing and suggestion for rehearirg en banc asserted
only that appellant had been impreperly denied Youth
Corrections Act treatment because there had been no
express finding, as required by Dorszynski, that appellant
would derive no benefit from such treatment. Because
of our concern that, as alleged by appellant, divisions
of this court may not have been applying Dorszynski
uniformly, the appeal was placed en banc, as our order
stated, “for the purpose of considering whether (Dorszyn-
ski) shall be applied retroactively . . .”
II
The requisite manner of implementation of § 5010(d)
of the Youth Corrections Act had heavily engaged the at-
tention of this court prior to Dorszynski. That section
provides that an adult sentence may be imposed “[I]f
the court shall find that the youth offender will not de-
A. 4
rive benefit from treatment” under the alternatives pro-
vided by the Act.' In United States v. Waters, 437 F.2d
722, 725 (1970), we said that the sentencing judge’s
discretion to impose an adult penalty “is circumscribed
by the findings of fact in the individual case which the
District Judge is required to make either explicitly or im-
plicitly.” (Emphasis supplied). And this necessity of an
affirmative finding of no benefit, albeit in either express
or implied terms, was reasserted by this court in United
States v. Ward, 454 F.2d 992 (1971).
In United States v. Coefield, 476 F.2d 1152 (1973), we
examined the issue en banc. The result of that inquiry
was a holding that the finding of no benefit must be
explicit and not left to implication, together with the ad-
dition of a new requirement that the judge making such
a finding must state the reasons which impelled him to do
1 Those alternatives are three in number, One is probation (Sec-
tion 5010(a)). A second (Section 5010(b)) is commitment to the
custody of the Attorney General for treatment and supervision
pursuant to the Act, in which event §5017(c) provides that the
defendant must be conditionally released under supervision within
four years, and unconditionally discharged within six years. The
third (Section 5010(c)) is, upon a finding that maximum benefit
from YCA treatment may not be derived within six years, commit-
ment to the custody of the Attorney General for any further period
otherwise authorized by law for the offense in question. In this
third alternative, Section 5017(c) requires that there shall be
conditional release under supervision not later than two years prior
to expiration of the term imposed, with unconditional release pos-
sible within one year thereafter; and unconditional discharge in any
event must occur on or before the expiration of the maximum
sentence imposed, computed uninterruptedly from the date of con-
viction. Sections 5017(a) and (b) provide that any committed youth
offender may be released at any time under supervision, and may be
unconditionally discharged at the expiration of one year thereafter.
A youth offender is defined by the Act as a person under 22 years
of age at the time of conviction. The Young Adult Offenders Act, 18
U.S.C. § 4209 (1970), provides that a defendant aged 22 to 26 may
be sentenced under the Youth Corrections Act if “the court finds that
there is reasonable grounds to believe that the defendant will
benefit” therefrom.
A.5
so. Dorszynski dispensed with this enlarged requirement
of the articulation of reasons, but, as we had done in
Coefield, held that the no-benefit finding must be explicit
rather than implicit. In this latter regard, the Supreme
Court stopped short of saying that the finding must
track the statute in haec verba, but it did say (at p. 444)
that the required quality of explicitness must be im-
parted by language “that makes clear the sentencing
judge considered the alternative of sentencing under the
Act and decided that the youth offender would not derive
benefit from treatment under the Act.”
When the present appeal was before a division of this
court, the issue was joined in terms of whether the sen-
tencing judge in fact met the standards subsequently
set in Dorszynski. Appellant continues en banc to assert
that the judge gave no consideration whatever to the
possibility of affording appellant Youth Corrections Act
treatment. This argument is not literally germane under
the terms of our en bane grant, but the varying doc-
trinal development that has occurred over time in this
court prompts us to take note of the situation as we
see it.
The record reveals that the sentencing judge was clearly
aware of the Youth Corrections Act and of appellant’s
eligibility as a matter of age for disposition under it.
The comments made by him seem to us of such a nature
as to constitute an implicit finding of no benefit within
the meaning of the relevant statutory provision, and of
our later interpretation of it in Waters and Ward.’ They
2 The sentencing judge’s extensive references to (i) the serious
nature of the assault, (ii) the prior criminal involvement of appel-
lant, and (iii) appellant’s attempt to escape, are both relevant to,
and supportive of, an implication that the court was asserting its
conviction that appellant would not respond to YCA treatment and
would only disrupt the program with no benefit to himself. The
judge’s further professions of a seeming unconcern with appel-
lant’s rehabilitation argue for a different interpretation of his
A. 6
were not, in our view, adequate to meet the higher stand-
ards of explicitness prescribed by this Court in Coefield,
and more importantly by the Supreme Court in Dorszyn-
ski. These premises, are, thus, the point of departure for
our consideration of the retroactivity issue framed by our
en bane order.
Ill
Aged 15 at the time he was sentenced, appellant is now
31. In the intervening years, the sentencing judge has
died, and appellant has twice been released on parole by
the federal authorities, but each parole was subsequently
revoked for parole violation. Released again in 1975 to
the custody of South Carolina, he is presently out on
parole from a South Carolina sentence of ten years for
a criminal violation in that state. In his brief en bane,
appellant asserts that, in the “unique facts presented by
this case,” resentencing under the Youth Corrections Act
could only take the form, not of exposure to rehabilitative
supervision, but of a release from further obligation
under his federal sentence. This, so it is said, flows from
the fact that the maximum sentence that can be given
under YCA equals the maximum adult sentence, and time
on parole is credited even if parole was subsequently re-
voked. Appellant received the maximum adult sentence
of 15 years, and he has already served more than 15
years if his time out on parole is credited, which it is
not in respect of an adult sentence but is under a YCA
sentence.
We do not pursue this question of the precise relief to
which appellant might be entitled if a remand for YCA
sentencing were to be ordered, except to remark that, as
envisioned by appellant, it does not entail his involuntary
subjection to the improving influences of the Youth Cor-
ruling, but we do not find them, in the entire context. inconsistent
with a no-benefit conclusion.
A.7
rections Division. We think, rather, that the facts giving
rise to the claim are significant only as they illuminate
the policies relevant to retroactivity. Those policies have
been identified by the Supreme Court as involving three
factors: (1) the purpose to be served by the new stand-
ards, (2) the extent of reliance by public authorities on
the old, and (3) the effect of retroactivity on the. admin-
istration of justice. Stovall v. Denno, 388 U.S. 293, 297
(1967).
The objective of the Supreme Covrt in its ruling in
Dorszynski was to assure that the sentencing judge will
give conscious consideration to YCA treatment for youth-
ful offenders who might, because of the very fact of their
youth, be saved from a life of crime by the youth-
oriented treatment provided by Congress to this end in
the YCA. Congress prescribed the age limits for that
particularized rehabilitative effort. Appellant has long
since exceeded them, as will have many, if not indeed
most, others who collaterally challenge their sentences.
This court confronted a similar problem in Mordecai v.
United States, 421 F.2d 11383 (1969), cert. denied, 397
U.S. 977 (1970). There we refused to give retroactive
application to the holding in Kent v. United States, 383
U.S. 541 (1966), in a collateral attack by a prisoner who
had not been afforded the hearing required by Kent be-
fore a juvenile offender is waived for adult trial. In do-
ing so the court noted the fact that the defendant was
no longer a juvenile, and that no remedy was currently
available to tap the rehabilitative potential of youth,
stating (at 1138) that “even if nonpunitive rehabilitation
in the juvenile process would have been the proper path
in 1961, society can no longer offer what was then, rightly
or wrongly, denied .. .”
The reliance interest in these circumstances is perhaps
of less significance, although it is likely that the sentenc-
ing judge’s action in this instance was not out of keeping
A. 8
with what were considered to be a sentencing judge’s
responsibilities at the time this sentence was imposed,
and indeed as they were later defined to be by this court
in Waters and Ward. The statute in question had been
on the books for 24 years before the Supreme Court au-
thoritatively prescribed the manner of its implementa-
tion. The varying and, as it turned out, not wholly suc-
cessful development of implementation doctrine in our
own court demonstrates the several faces which the statu-
tory language apparently presented to individual judges,
especially those charged with the traditionally awesome
responsibility of criminal sentencing.‘
With respect to the effect upon the administration of
justice, there are obvious problems in deciding anew the
delicate question of susceptibility to YCA treatment many
years—in this case, 16—after the initial sentence. Not
infrequently, as here, the sentencing judge will no longer
be available. The task of recreating the conditions under
which the first sentence was imposed holds the threat of
more administrative burdens on a criminal justice system
that is already overloaded. And surely those charged with
the intensely important work of trying to save truly
youthful offenders from blighted lives will not be aided
by the prospect of the appearance among their charges
of persons who have matured beyond the statutory age
limits in the criminal environment.‘
‘Limitations on retroactivity are not, of course, confined to
constitutional holdings. See Halliday v. United States, 394 U.S. 831
(1969). In concluding not to give retroactive application to an
interpertation by it of Rule 11, Fep. R. Crim. P., McCarthy v. United
States, 394 U.S. 459 (1969), the Court stated (at 832) that it ap-
proached the problem by reference to “the same criteria we have
employed to determine whether constitutionally grounded decisions
that depart from precedent should be applied.” And see Judge
Leventhal’s useful discussion of the concept of reliance in his con-
curring opinion in Mordecai, supra.
‘As an appendix to his brief en banc, appellant has supplied
some Administrative Office figures as indicating that the number of
a ea eee
LTS areas aan
A.9
There comes a time, in the criminal law as elsewhere,
where the more remote past can not be set to rights in
response to late-blooming legal doctrine, at least not with-
out impairment of other vital interests. This is such a
case, and because we believe it to be characteristic of
those that will arise on collateral attack, we state our
judgment to be that the retrospective operation of Dor-
szynski shall, in respect of sentences imposed prior to the
issuance of our decision in Coefield, be restricted to direct
appeals arising therefrom.’ This differentiation of direct
appeals from collateral attacks is one that has heretofore
been recognized by this court as justifiable in appropriate
circumstances. See Pendergrast v. United States, 416
F.2d 776, 782, cert. denied, 395 U.S. 926 (1969), and
cases therein cited. We think the circumstances presented
by this record warrant its utilization in the area ad-
dressed today by this court en bance.°
persons likely to benefit from full retroactivity for Dorszynski is
not such as to create apprehensions about burdening the criminal
justice system. The figures on their face are not impressively sup-
portive of appellant’s point, since they reveal very substantial num-
bers of defendants in the period from 1965 to 1972 receiving adult
sentences despite their age eligibility for YCA. This presumably
reflects the growing national concern about the participation by
young people in serious crime.
5 We use Coefield as the measuring date for the reason that
Coefield made it the law of this circuit that the no-benefit finding
must be explicit. Dorszynski adopted the same rule; and its invali-
dation of Coefield’s additional requirement of the statement of rea-
sons has no bearing on the issue immediately before us. Appellant
is, of course, not helped by Coefield because his sentence occurred
12 years earlier, and there was no direct »ppeal.
® Coming down on the side of non-retroactivity in a 2255 case
is the Tenth Circuit. Jackson v. United States, 510 F.2d 1335 (10th
Cir. 1975). And, in another retroactivity context, see the appar-
ently approving reference to Jackson in Bailey v. Holley, 530 F.2d
169, 173 (7th Cir. 1976). The Second Circuit, in its en bane pre-
Dorszynski ruling like ours in Coefield, requiring both an explicit
finding and a statement of reasons, expressly made that ruling non-
retroactive. United States v. Kaylor, 491 F.2d 1133 (2nd Cir. 1973),
ee aeons
A. 10
The District Court is, accordingly, affirmed.
It is so ordered.
vacated and remanded for reconsideration in the light of Dorszynski,
sub nomine United States v. Hopkins, 418 U.S. 909 (1974). See also
Owens v. United States, 383 F. Supp. 780 (M.D. Pa. 1974), aff'd
without opinion, 515 F.2d 507 (3rd Cir. 1974), cert. denied, 423 U.S.
996 (1975), in which the District Court, in a carefully considered
opinion, held Dorszynski non-retroactive in the context of a 2255
motion.
Our limitation of the retroactivity of Dorszynski is concededly at
odds with holdings in other circuits. The latest of these appears to
be McCray v. United States, 542 F.2d 1246 (4th Cir. 1976). That
case involved a collateral challenge under § 2255, but the court, in a
one-page per curiam, took no note of this fact, and limited its dis-
cussion to the assertion that it had “consistently remanded similar
cases,” citing two of its prior cases, one of which was a direct
appeal in which the prosecutor had sought the remand, United
States v. Bailey, 509 F.2d 881, 883 (1975), and the other, United
States v. Flebotte, 503 F.2d 1057 (1974), was a 2255 which was
remanded for resentencing in a 2-paragraph per curiam citing
Dorszynski and a prior Fourth Circuit case, United States v. Ashby,
502 F.2d 1163 (table), from which, since there is no reported
opinion, it is impossible to tell whether it involved direct appeal or
2255. The Eighth Circuit is also to the contrary. See Brager v.
United States, 527 F.2d 895 (1975), which devotes most of its brief
discussion to describing the findings which on remand will warrant
dismissal of post-conviction applications. See also Belgrade v. United
States, 503 F.2d 1054 (9th Cir. 1974), and Hoyt v. United States,
502 F.2d 562 (5th Cir. 1974), both of which are very brief per
curiam dispositions.
ee
A. 11
MACKINNON, Circuit Judge, concurring specially, in
which Ross, Circuit Judge joins: I concur in the fore-
going opinion except to the extent that it conflicts with
the following. It is not my view that Dorszynski Vv.
United States, 418 U.S. 424 (1974) requires an explicit
finding of “no benefit” in all instances. In Dorszynski,
the Chief Justice remarked that:
An explicit finding that petitioner would not have
benefited from treatment under the Act would have
removed all doubt concerning whether the enlarged
discretion Congress provided to sentencing courts
was indeed exercised.
418 U.S. at 444 (emphasis added). What evoked this
observation was that the sentencing proceeding in
Dorszynski presented a record in which it was unclear
whether
the options of the Act were considered and rejected
for] whether . . . the court believed petitioner to be
legally ineligible for treatment under the Act—
which would be error—or whether, realizing he was
eligible, nevertheless deliberately opted to sentence
him as an adult.
418 U.S. at 444. It was in such circumstances that
Dorszynski pointed out that an explicit finding of “no
benefit” would have resolved that ambiguity in the record.
Elsewhere in the opinion it is stated:
Once it is made clear that the sentencing judge has
considered the option of treatment under the Act and
rejected it, however, no appellate review is war-
ranted,'*!
The question whether the finding of “no benefit”
must be explicit or whether it may be implicit in
1 In my view that is the factual situation here.
A. 12
the record of a particular case is answered by the
manifest desire of Congress to assure that treat-
ment under the Act be considered by the court as
one option whenever the youth offender is eligible
for it. If the finding may be implied from the rec-
ord, appellate courts must go on to determine what
constitutes a sufficient showing of the requisite im-
plication. To hold that a “no benefit’ finding is
implicit each time a sentence under the Act is not
chosen would render $5010(d) nugatory; to hold
that something more is necessary to support the
inference that must be found in the record would
create an ad hoc rule. Appellate courts should not
be subject to the burden of case-by-case examina-
tion of the record to make sure that the sentencing
judge considered the treatment option made avail-
able by the Act.'*! Literal compliance with the Act
ean be satisfied by any expression that makes clear
the sentencing judge considered the alternative of
sentencing under the Act and decided that the youth
offender would not derive benefit from treatment
under the Act.
418 U.S. at 443-44 (emphasis added).
The Supreme Court thus states that literal compliance
with the Act is satisfied if the trial court at the time of
sentencing indicates by “any expression” that it: (1)
considered the alternative of sentencing under the Act
and (2) decided that the youth offender would not de-
rive benefit from treatment under the Act. Therefore,
when the sentencing judge in this case said:
[O]bviously this is not a case for the Youth Correc-
tions Act, both because of the nature of the offense
2 It is clear here that the sentencing judge did consider the sen-
tencing options.
A. 13
and the nature of the prior records of these de-
fendants. ...
it is clear that he did consider “the alternative of sen-
tencing under the Act.” 418 U.S. at 444. It is also clear
that when the sentencing judge stated:
[Brackett] needs incarceration in a maximum se-
curity institution (emphasis added)
he was stating, as clearly as one could state without
echoing the exact “no benefit” language of the statute,
that the court concluded Brackett would not derive bene-
fit from treatment under the Act.
It is thus my opinion that the sentence imposed satis-
fied the Youth Act requirements and was not in conflict
with the requirements of Dorszynski. There was nothing
ambiguous in the sentencing by Judge Holtzoff, like the
ambiguity in Dorszynski, that created any doubt that
“the sentencing judge considered the treatment option
made available by the Act” and that such “options of the
Act were considered and rejected.” Nor is there any-
thing in Brackett’s sentencing that creates any doubt
that the sentencing judge had considered whether the
defendant was “legally [eligible] for treatment under the
Act.”
The majority opinion does not disagree with this char-
acterization of the trial judge’s sentencing. The majority
grants that (1) the trial judge made “comments” and
“extensive references”, and (2) that those statements
made clear that “appellant would not respond to YCA
treatment.” (Maj. op. at 5 & n. 2). Dorszynski requires
no more.
This is not to say that an incantation of the “no
benefit” finding would not more clearly have satisfied
the statute. However, to my mind the judge was telling
Brackett that he would not derive benefit from treatment
A. 14
under the Act when he told him he “need[ed] incarcera-
tion in a maximum security institution.” The sentenc-
ing proceedings thus did not involve any indication that
the probation officer or court were uncertain as to the
eligibility of the defendant for a Youth Act sentence,
such as was present in Dorszynski. In my view the sen-
tencing proceeding satisfies all the requirements that
Dorszynski outlines for a legal sentence, and thus it is
not necessary for us to consider whether Dorszynski is
retroactive.
As I read Dorszynski an implicit finding of “no bene-
fit’ satisfies the statute unless the basis for reaching
the implication is ambiguous. There is no latent am-
biguity in the instant sentencing proceeding.
A. 15
BAZELON, Chief Judge, dissenting, in which ROBINSON,
Circuit Judge joins:
Having decided that Dorszynski will not be applied
retroactively to collateral attacks on sentences and that
the pre-Coefield requirement of either an express or im-
plied finding of ‘“‘no benefit” applies to this case—views
which I share—the majority affirms Brackett’s sentence
because it concludes that the sentencing judge here made
the necessary implied finding. On this record, I find
neither an express nor implied finding of “no benefit,”
and thus conclude that under either a pre or post-
Dorszynski standard the sentencing judge failed to give
the required degree of attention to the possibility of a
Youth Corrections Act sentence.
Before pronouncing sentence on Brackett and his co-
defendant, the district judge asked counsel for their com-
ments. Brackett’s attorney stressed his client’s youth and
urged YCA sentencing; his codefendant’s attorney argued
that his client’s youth, low intelligence, and lesser role
in the crime supported leniency and YCA sentencing.
The court then expressed its views:
The fact that these defendants are young is not
a mitigating circumstance so far as their crime is
concerned. They are really murderers. They were
allowed to plead guilty to manslaughter, but their
acts could have been held by the jury to constitute
murder. They were prisoners in the National Train-
ing School for Boys, having been committed under
the Federal Juvenile Delinquency Act for stealing
automobiles. Each of them has a bad record before
this present commitment. They were in a dormi-
tory with 80 other prisoners. There was only one
guard during the night. He sat inside, immediately
inside the dormitory, at a desk. The door of the
dormitory was locked... .
A. 16
These two defendants, in conjunction with the
third defendant, Jankowski, plotted to overpower the
officer, get the keys from him and make an escape
during thé night. Brackett, although he is the young-
est of the three, was the ring leader and he is ap-
parently the most vicious of the three.
By a prearranged signal they got out of their
beds and walked to the desk and Brackett grabbed
a big heavy brass lamp and began to beat the guard
over the head with that lamp and, in addition to
that, used a big broom. McCracken, according to
the evidence, participated in the beating by hitting
the guard with his fist. The guard was screaming
and pleading for help but Brackett, particularly,
did not let up the beating.
The guard was eventually found on the floor in
a pool of blood. He was in a coma for a week and
three weeks later he died of this attack.
Now, obviously this is not a case for the Youth
Corrections Act, both because of the nature of the
offense and the nature of the prior records of these
defendants. The Court is more interested in the
fate that befell the guard than it is in the future
of these two boys.
Now, if they have a spark of humanity—and every
human being has; some have a greater spark and
some a lesser, but everyone has—they will lie awake
many a night in a feeling of remorse for what they
have done, and if they have any spark of humanity
they will spend many an hour on their knees pray-
ing to God and imploring God to forgive them.
Now, Brackett has shown vicious tendencies. In
addition to plotting the escape plan involved in this
case, after he pleaded guilty he tried to escape from
A. 17
the Marshal’s van. He needs incarceration in a maxi-
mum security institution. (Emphasis added.)
The court then gave Brackett the maximum adult sen-
tence of five to fifteen years, with recommended commit-
ment in a maximum security facility. Appellant was
fifteen years old at the time.
I do not find in the sentencing judge’s statement any
conclusion, express or implied, that appellant would fail
to benefit from Youth Corrections Act sentencing. The
judge obviously was aware of this option, but his com-
ments demonstrate that he ruled it out without regard to
Brackett’s rehabilitative potential under Youth Act
treatment. He focused instead on the viciousness of the
crime, frank'y admitting that he was more concerned
with the violence done to the victim than with the re
formation of the defendants."
Under either a pre- or post-Dorszynski standard, a
judge must do more than indicate awareness that the
Youth Corrections Act option exists. He must express his
decision “that the youth offender would not derive benefit
from treatment under the Act.” Dorszynski, supra,
at 444. Section 5010(d) of the Act requires that a
judge make this finding before resorting to an adult
1The Youth Corrections Act does not exclude categories of youth-
ful offenders from its coverage, neither those with long records nor
perpetrators of vicious offenses nor murderers. These factors may
be relevant to the determination of whether a youth will benefit
from Youth Corrections Act treatment—either pro or con—but
they cannot be relied or as rigid indicators. As the Second Circuit
has stated, the sentencing judge should make “a careful appraisal of
the variable components relevant to the sentence upon an individual
basis” rather than employing “a fixed and mechanical approach in
imposing sentence.” United States v. Schwarz, 500 F.2d 1350, 1352,
(1974) (district judge’s statements required vacation of adult
sentence because they were susceptible to the interpretation that
oniy ghetto youths are eligible for YCA treatment). See also
Dorszynski v. United States, 418 U.S. at 450 (Marshall, J., con-
curring).
A. 18
sentence because Congress believed that the Youth Cor-
rections Act program would be likely to “provide a better
method for treating young offenders convicted in federal
courts in that vulnerable age bracket, to rehabilitate
them and restore normal behavior patterns.” Dorszynski,
supra, at 433.
The majority’s effort to recast the judge’s discourse
in our pre-Coefield doctrinal mold falls considerably wide
of the mark. The most the majority can say is that
some of his remarks are “supportive of [a no-benefit]
implication” and that others, which concededly “argue
for a different interpretation,” assertedly are not “in-
consistent with a non-benefit conclusion.” Majority op.
at 6 n.2. Even assuming arguendo the validity of this
analysis, however, it hardly bears out the thesis that the
sentencing judge made an implied no-benefit finding with-
in Section 5010(d) as construed in Waters and Ward.
It does not suffice to merely wring some intimation of
no-benefit from what the sentencing judge said; at the
very least, the question in terms of those decisions is
whether the implication is plain and unambiguous. In
each of those cases, particular observations viewed in
isolation indicated that no benefit from Youth Act treat-
ment was expectable, but there were other observations
casting doubt on that reading. United States v. Waters,
437 F.2d 722, 725-726 (D.C. Cir. 1970); United States
v. Ward, 454 F.2d 992, 993-994, 995 (D.C. Cir. 1971).
See also Dorszynski, supra, at 443-444. In concluding
that Section 5010(d) did not tolerate that sort of fuzzi-
ness, we held in effect that imprecise expressions could
do service as implied no-benefit findings only when the
message was clear.
Although the Supreme Court has held that a judge
need not give reasons for his finding of “no benefit,” *
* Dorszynski v. United States, 418 U.S. 424, 441-42 (1974).
A. 19
no one has yet suggested that a judge may impose an
adult sentence for reasons other than the defendant’s
incapacity to be helped by Youth Act treatment. Because
the sentencing judge’s comments unmistakably show re-
liance on such impermissible reasons, I would reverse
and remand to the District Court for determination of
whether Brackett might have benefited from Youth Act
treatment at the time of his original sentencing.*
3If Brackett were found suitable for YCA treatment, he should
be released from federal supervision stemming from this conviction
because the YCA requires that a youth sentenced thereunder be
discharged no later than “‘the expiration of the maximum sentence
imposed, computed uninterruptedly from the date of conviction.” 18
U.S.C. § 5017(d). See majority op. at 6-7. Compare Dorszynski, 418
U.S. at 429 n.6.
A. 20
Order of the District Court denying petitioner’s
Section 2255 motion, August 6, 1974
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 74-742
(Criminal No. 953-60)
WALTER STEVE BRACKETT,
Petitioner
vs
UNITED STATES OF AMERICA,
Respondent
ORDER
Upon consideration of petitioner’s Motion to Set Aside
and Vacate Judgment of Conviction and respondent’s
Opposition thereto, it is by the Court this 6th day of
August 1974,
ORDERED that petitioner’s Motion should be and
hereby is denied, and it is
FURTHER ORDERED that this case be and hereby
is dismissed.
/s/ June L. Green
JUNE L. GREEN
U. S. District Judge
A. 21
Judgment of the panel of the Court of Appeals,
December 10, 1975
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SEPTEMBER TERM, 1975
Civil 74-742 (2255)
Cr 953-60
No. 75-1495
UNITED STATES OF AMERICA
v.
WALTER S. BRACKETT,
Appellant
Appeal from the United States District Court
for the District of Columbia
Before: MCGOWAN, TAMM and Ross, Circuit Judges
JUDGMENT
THIS CAUSE came on to be heard on the record on
appeal from the United States District Court for the
District of Columbia, and was argued by counsel. While
the issues presented occasion no need for an opinion, they
have been accorded full consideration by the Court. See
Local Rule 13(c).
A. 22
ON CONSIDERATION OF THE FOREGOING, It is
ordered and adjudged by this Court that the judgment
of the District Court appealed from in this cause is hereby
affirmed.
The duty of counsel is fully discharged without filing
a suggestion for rehearing en banc unless the case meets
the rigid standards of Federal Rule of Appellate Proce-
dure 35(a).
Per Curiam
For the Court
/s/ Hugh E. Kline
HuGH E. KLINE
Clerk
A. 28
Statutes and regulations involved
1. 28 U.S.C. § 2255 (1970) provides that:
A prisoner in custody under sentence of a court estab-
lished by Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in viola-
tion of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maxi-
mum authorized by law, or is otherwise subject to col-
lateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
A motion for such relief may be made at any time.
Unless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto. If the court
finds that the judgment was rendered without jurisdic-
tion, or that the sentence imposed was not authorized by
law or otherwise open to collateral attack, or that there
has been such a denial or infringement of the constitu-
tional rights of the prisoner as to render the judgment
vulnerable to collateral attack, the court shall vacate and
set the judgment aside and shall discharge the prisoner
or resentence him or grant a new trial or correct the
sentence as may appear appropriate.
A court may entertain and determine such motion
without requiring the production of the prisoner at the
hearing.
The sentencing court shall not be required to enter-
tain a second or successive motion for similar relief on
behalf of the same prisoner.
A. 24
An appeal may be taken to the court of appeals from
the order entered on the motion as from a final judgment
on application for a writ of habeas corpus.
An application for a writ of habeas corpus in behalf
of a prisoner who is authorized to apply for relief by mo-
tion pursuant to this section, shall not be entertained if
it appears that the applicant has failed to apply for re-
lief, by motion, to the court which sentenced him, or that
such court has denied him relief, unless it also appears
that the remedy by motion is inadequate or ineffective to
test the legality of his detention.
2. The Federal Youth Corrections Act, 18 U.S.C. $§ 5006,
5010 and 5017 (1970), provide in pertinent part:
§ 5006. Definitions
As used in this chapter—
* * * aa
(e) “Youth offender” means a person under the age
of twenty-two years at the time of conviction;
* * * *
$5010. Sentence
(a) If the court is of the opinion that the youth of-
fender does not need commitment, it may suspend the
imposition or execution of sentence and place the youth
offender on probation.
(b) If the court shall find that a convicted person is
a youth offender, and the offense is punishable by impris-
onment under applicable provisions of law other than this
subsection, the court may, in lieu of the penalty of im-
prisonment otherwise provided by law, sentence the youth
offender to the custody of the Attorney General for treat-
ment and supervision pursuant to this chapter until dis-
charged by the Division as provided in section 5017(c)
of this chapter; or
A. 25
(ce) If the court shall find that the youth offender may
not be able to derive maximum benefit from treatment
by the Division prior to the expiration of six years from
the date of conviction it may, in lieu of the penalty of
imprisonment otherwise provided by law, sentence the
youth offender to the custody of the Attorney General for
treatment and supervision pursuant to this chapter for
any further period that may be authorized by law for
the offense or offenses of which he stands convicted or
until discharged by the Division as provided in section
5017(d) of this chapter.
(d) If the court shall find that the youth offender
will not derive benefit from treatment under subsection
(b) or (c), then the court may sentence the youth offender
under any other applicable penalty provision.
(e) If the court desires additional information as to
whether a youth offender will derive benefit from treat-
ment under subsections (b) or (c) it may order that he
be committed to the custody of the Attorney General for
observation and study at an appropriate classification
center or agency. Within sixty days from the date of
the order, or such additional period as the court may
grant, the Division shall report to the court its findings.
3. Sections 11-906, 11-907 and 11-914 of the District of
Columbia Juvenile Court Act (1961), provide in perti-
nent part:
§ 11-906. Application of subchapter-Definitions.
(a) This subchapter shall apply to any person under
the age of 18 years—
(1) Who has violated any law; or who has violated
any ordinance or regulation of the District of
Columbia ....
A. 26
(b) When used in this subchapter—
(3) The word “child” means a person under the age
of 18 ‘years. ...
§ 11-907. Jurisdiction—Original and exclusive.
1. Children.—Except as herein otherwise provided,
the court shall have original and exclusive jurisdiction of
all cases and in proceedings:
(a) Concerning any child coming within the terms
and provisions of this subchapter.
(b) Concerning any person under 21 years of age
charged with having violated any law, or violated any
ordinance or regulation of the District of Columbia, prior
to having become 18 years of age, subject to appropriate
statutes of limitation.
a * * a
When jurisdiction shall have been obtained by the
court in the case of any child, such child shall continue
under the jurisdiction of the court until he becomes 21
years of age unless discharged prior thereto: Provided,
however, That nothing herein contained shall affect the
jurisdiction of other courts over offenses committed by
such child after he reaches the age of 18.
a * * *
§ 11-914. Waiver of jurisdiction in case of felony—
Transfer of case.
If a child sixteen years of age or older is charged
with an offense which would amount to a felony in the
ease of an adult, or any child charged with an offense
which if committed by an adult is punishable by death
or life imprisonment, the judge may, after full investiga-
tion, waive jurisdiction and order such child held for trial
under the regular procedure of the court which would
A. 27
have jurisdiction of such offense if committed by an adult;
or such other court may exercise the powers conferred
upon the juvenile court in this subchapter in conducting
and disposing of such cases.
A. 28
Order of the Juvenile Court waiving jurisdiction,
October 19, 1960
By authority vested in me under Section 13 of the
Juvenile Court Act of the District of Columbia of June
1, 1938, 52 Stat. 599, ch. 309, as amended, and after full
investigation, I do hereby waive jurisdiction over the
following offense, which if committed by an adult would
be punishable by death or life imprisonment, charged
against WALTER STEVE BRACKETT, born Septem-
ber 14, 1945, of National Training School for Boys in
the District of Columbia,
Murder: Date of offense—on or about September
11, 1960, in the vicinity of National Training School
for Boys, Columbia Hall; Complainant, William
Latimer (deceased )
and I do hereby order said child for trial for such of-
fense under the regular procedure of the D.C. District
Court for the District of Columbia.
Dated this 19th day of October, 1960, at Washington,
D.C.
/s/ Orman W. Ketcham
Judge
A true copy.
Attest:
/s/ Edith W. Dowden
Acting Clerk
Juvenile Court, D.C.
A. 29
Trial transcript. January 31, 1961
[201] AFTERNOON SESSION
1:45 p.m.
(The following proceedings were had out of the
presence of the jury.)
THE COURT: We will proceed with the case on
trial.
Will counsel come to the bench, please.
(At the bench: )
THE COURT: Mr. Karr, I have kept the jury in the
jury room and I have also asked you gentlemen to come
to the bench so that there would be no possibility of
anyone overhearing this bench conference.
You know, I am a bit concerned as to whether you
gave good advice to your client. In one sense I do not
share any responsibility in the matter because you were
retained and selected by the defendant, you were not
appointed by the Court. If I had appointed you I would
be a little more concerned.
Your client is on trial for his life. Have you con-
sidered that? He has a possibility of pleading guilty
to manslaughter.
The boy Jamison’s testimony was one of the most
gruesome bits of testimony I have heard in all my
years on the bench.
It is all very well for you to claim no causal con-
nection between the beating and the death. You would
have [202] a lot of difficulty in disproving Dr. Rosen-
berg’s testimony.
Are you going to have any medical testimony on that
point?
MR. KARR: Yes, indeed.
THE COURT: Have you had the defendant ex-
amined?
A. 30
MR. SMITHSON: Yes, Your Honor. He refused to
talk to Dr. Cavanagh. He refused to even tell Dr.
Cavanagh his name.
THE COURT: I would let you call Dr. Cavanagh.
MR. SMITHSON: I can do even better, Your Honor.
He had a psychological test given out there by Dr. Twain,
Chief Psychologist, and Dr. Jacobs is a psychiatrist.
THE COURT: But I also will let you call Dr. Cava-
nagh and let him testify the man refused.
MR. SMITHSON: I intend to.
THE COURT: Because that would show he is not
acting in good faith.
MR. KARR: Your Honor—Excuse me, I withdraw
this comment at this point.
THE COURT: I am going to admit that evidence,
that Dr. Cavanagh tried to see him and he refused to
talk to him, because that throws considerable light on the
good faith of the insanity defense.
As I say, you have the responsibility for such advice
as is given to a client, of course.
[203] How many years have you been practicing?
MR. KARR: Two and a half.
THE COURT: You see, I would not anpoint a man
with two and a half years’ experience to try a murder
in the first degree case. I never have. I have always
appointed older experienced lawyers because the younger
man may be just as good a trial lawyer but he has not
got mature judgment.
You have appeared before me in other matters and
I have always looked upon you as a promising young
lawyer.
MR. KARR: Thank you.
THE COURT: And I still do. But I think you take
an awful burden on yourself when you advise your client
to contest this case when he has an opportunity to plead
guilty to manslaughter.
A. 31
MR. KARR: I can’t tell you, Your Honor, how this
has weighed upon my mind. I told you yesterday here
at the bench, when you asked me to make a decision,
that this is probably one of the most grievious decisions
I have ever made in my life, vis-a-vis giving this man
advice regarding what I think he should do.
THE COURT: What does he want to do? Or, does
he rely solely on your advice? If you prefer not to
answer that, don’t answer it because, after all, I do not
want to pry into the confidential relation between a
lawyer and client.
MR. KARR: As Your Honor knows, I have never
been [204] less than forthright with Your Honor in
all of our dealings in the past and certainly during the
course of the trial.
THE COURT: Yes, there is no question about that.
MR. KARR: I don’t certainly hesitate to answer
your question on that basis. I have informed him of
what I think the quality of his defense is. I have in-
formed him fully that he has a perfect right to plead
guilty to manslaughter, as did the other two boys, if
he so desired. I told him what the penalty was, and he
asked me my evaluation of the strength of his defense.
Now, Your Honor, if I had gone out and had had the
money in this case to go out and hire a psychiatrist and
it was exclusively on the basis of this psychiatrist’s testi-
mony that I was grounding my insanity defense, it would
be one thing. But, Your Honor, to me, this was a court-
appointed entirely impartial psychiatrist, and I have
talked—
THE COURT: That psychiatrist’s report is not worth
the paper it is written on, absolutely not. As a matter
of fact, I am surprised that that psychiatrist would
render such a report. He does not say what the mental
disease of the defendant is. He says it is caused by his
psychological make-up and, therefore, the product of
mental disease. It does not state what mental disease
A. 32
he had. I must say that I was amazed at that report.
That report can be torn to shreds, Mr. Karr.
[205] What Mr. Smithson said just now is new to
me. The fact that the Government sent a psychiatrist
to interview him and the defendant refused to talk to
the psychiatrist is evidence of his bad faith and certainly
is admissible, and I imagine Mr. Smithson will make
very strong argument on that issue.
Besides which, if he is insane, he is in for a long term
in a lunatic asylum.
MR. KARR: To be sure.
THE COURT: Not just a mental hospital where
civilian patients are sent and have the privileges of the
grounds and all that. He would be in a locked criminal
ward mingling with murderers, rapists, raving maniacs,
where he might be assaulted by mad men. Actually, I
think he would be happier in the penitentiary.
Now, on the other hand, if he is found guilty f
murder in the second degree he would get a much longer
sentence, of course, than the maximum of manslaughter,
and there is a possibility of his being found guilty of
murder in the first degree. I never thought so until I
heard Adrian Jamison’s testimony. It horrified me.
MR. KARR: I am not certainly happy with the idea,
as I said in my opening statement. I am not very happy
with the idea that this guard was assaulted and ulti-
mately died, believe me, Your Honor.
(206] THE COURT: I understand. As I say, you are
not Court appointed so the Court does not share any
responsibility. The defendant will never be in a _ posi-
tion to say, “You have appointed a lawyer with insuffi-
cient experience for a murder case.” He would say, “I
have selected my own lawyer.” He would have to say
that. Or, we would say, “You selected your own law-
yer.”
For a lawyer with your experience you are doing
very well. You are doing niuch better than the average
A. 33
lawyer who has had two and a half years’ experience.
But, after all, this is a murder case, this is a murder
in the first degree case.
Wesley McDonald is a very experienced lawyer. He
is an experienced trial lawyer, tried every kind of case
for many years. Jankowski is the least guilty of the
three and, even so, Wesley McDonald advised his client
to take advantage of the opportunity to plead guilty to
manslaughter.
MR. KARR: I know this, Your Honor.
THE COURT: I am going to drop the matter at
this point, but I do say if there is a verdict of guilty of
murder in the first degree you will regret it very much.
After all, you are gambling with another man’s life.
MR. KARR: I am fully aware of this and, believe
me, this doesn’t lie lightly upon my mind, as I indicated
to you yesterday. Frankly—
[207] THE COURT: The least that you perhaps
might have done is to say, “I will give you no advice, you
make your own decision.”
MR. KARR: But a 15-year-old boy, when he asks
me for advice—
THE COURT: He is not 15, is he?
MR. KARR: Yes, Your Honor.
MR. SMITHSON: He was 14 at the time.
MR. KARR: Fourteen at the time that this happened.
If my son, Your Honor, were charged with this offense,
I wouldn’t let him make this decision.
THE COURT: Perhaps so. I did not realize he was
as young—he looks much older.
MR. SMITHSON: He was the ring leader, Your
Honor, is the Government’s contention, and I think coun-
sel ought to bear this in mind, too, he has been in trouble
in two other institutions, running away and other kinds
of fight.
MR. KARR: I understand this and, believe me, I
don’t underestimate the experience that Mr. Smithson
has over the experience that I have in this matter.
A. 34
THE COURT: I personally think what is going to
happen in this case, if I was to prognosticate, that there
would be a verdict of guilty of murder in the second
degree. However, do not discount a possibility of murder
in the first degree.
[208] Let me tell you an experience I had, I guess it
was a year and a half ago or two years ago. I forget
which assistant it was. I had a murder case, an indict-
ment of murder in the first degree. I thought the evi-
dence of premeditation was very skimpy and very doubt-
ful, much weaker than in this case, and yet just enough to
let it go to the jury. But I thought the jury should find
the defendant guilty of murder in the second degree, not
murder in the first degree, and in my instructions to the
jury I talked a lot about murder in the second degree and
very little about murder in the first degree. To my dis-
comfort and distress the jury came in and found him
guilty of murder in the first degree.
Now, I want to tell you this, I found a way of
setting that verdict aside, which I did. I won’t find a
way here, probably, because Jamison’s testimony would
convict anybody. Of course, you may contradict it, but
if the jury believes Jamison’s testimony you are in a bad
position.
So the man was retried and he was found guilty of
murder in the second degree.
But there is such a thing as runaway trial juries. In
the Tatum case, the famous Tatum case, I tried it, I
never expected a verdict of guilty with capital punish-
ment. Mr. McLaughlin was counsel for the Government—
no, it was not Mr. McLaughlin.
MR. SMITHSON: Mr. Conliff, I believe it was.
[209] THE COURT: Anyway, George Hayes was de-
fense counsel. It was a very brutal rape of a seven-year-
old girl. The girl was almost torn in half and was in the
hospital for some weeks. There wasn’t any doubt about
A. 35
the man’s guilt. Everybody was surprised when the jury
came in and said guilty with the death pen»’ty.
You know, in spite of what you read in the Washington
Post, Washington juries do not hesitate to bring in a ver-
dict that carries capital punishment. I base this on my
observation, the Washington Post to the contrary not-
withstanding. We have no trouble getting convictions in
murder in the first degree cases.
I know statements have been made to that effect, but
that is not true. The fact that the Judicial Conference
voted against capital punishment a year ago, that was an
audience composed largely of opponents to it and the other
side was not well represented. It was not a true vote. If
there was a secret ballot by mail of the entire Bar of the
District of Columbia capital punishment would be ap-
proved overwhelmingly, and more so than a year ago be-
cause we have got more homicides.
So, there you are. We will go on with the trial, but
I am very much concerned about the advice you have
given to your client.
MR. KARR: So am I, so am I.
[210] THE COURT: Just to say so am I does not give
me any comfort.
MR. KARR: Your Honor, it doesn’t give me any
comfort, either. I have to follow the dictates of my
conscience.
THE COURT: I think you are immature, Mr. Karr.
MR. KARR: That is entirely possibly.
THE COURT: Why don’t you associate an older
lawyer with you?
MR. KARR: I had three older lawyers with me at
the beginning.
THE COURT: Why don’t you talk to Wesley Mc-
Donald? I think Wesley McDonald would advise with you
without expecting any remuneration.
MR. KARR: Of course. There is no remuneration to
give in this case.
A. 36
THE COURT: Exactly. I am sure Mr. McDonald
would unselfishly discuss the matter with you.
MR. KARR: I am certain of this.
THE COURT: You talk to him. However, I am not
going to bring the subject up again. We will proceed.
MR. KARR: You Honor, one more thing. While we
are at the bench perhaps we could dispose of this. The
Defendant Jankowski had under subpoena certain wit-
nesses. These witnesses are James Jopp, Cheesman, and
Olson. I understand from the Marshal downstairs that
inasmuch as * * *
[224] (The last answer was read by the reporter.)
BY MR. KARR:
Q Did he look pretty wild when he was swinging that
lamp?
A Yes, sir.
Q Did you get a look at his eyes?
MR. SMITHSON: I object, Your Honor. I think we
are going into another issue.
THE COURT: I think this is part of the res gestae.
It is within the scope of direct examination.
MR. SMITHSON: I think it’s going to a more affirm-
ative position.
THE COURT: Yes, it does, but on the other hand, it
is within the scope of the direct examination as to what
happened at the time.
MR. SMITHSON: All right.
THE COURT: You may proceed.
MR. KARR: Thank you, Your Honor.
BY MR. KARR:
Did he look pretty wild?
Yes, sir.
Did you get a look at his eyes?
Yes, sir.
> O > ©
A. 37
Q How did they look?
A I guess you’d call them looking wild. They were
[225] real wide.
Q You are talking about Brackett now, aren’t you?
A Yes, sir.
Q Did you hear what Mr. Latimer said to Brackett
just before Brackett hit him?
A No, sir.
Q You did testify that you heard them saying some-
thing, but you couldn’t hear it, isn’t that correct?
A Yes, sir.
MR. KARR: That is all, Your Honor. Thank you.
REDIRECT EXAMINATION
BY MR. SMITHSON:
Q You say, sir, you were asked on cross-examination
where Campbell was sleeping and you responded where he
was sleeping or where he was supposed to sleep. Did you
see him in a different bed than his normal bed that night?
A Yes, sir.
Q And who was in the bed he normally occupied that
night?
A I can’t recall, but he was sleeping in the wrong
bed.
Q He was in the wrong bed. Did you see him go to
the bathroom earlier and come back to his bed?
A Yes, sir.
Q Was his bed occupied at that time?
[235] <A Yes, sir.
Q These stairs were located, as you look at the desk,
these stairs were located to the left of the desk, were
they not?
A Yes, sir.
A. 38
Q Now, a bunch of boys rushed to these stairs after
Brackett and McCracken had gone down, didn’t they?
Yes, sir.
How mdny boys would you say?
I don’t know.
Were you one of those boys?
No, sir.
Was Jamison one of those boys?
I don’t recall.
You were sleeping when this whole thing began,
weren’t you?
A Yes, sir.
Q And the noise woke you up, didn’t it?
A Yes, sir.
Q And when you woke up did you get a clear look at
Brackett?
A Yes, sir.
Q What did he look like to you?
A His eyes looked like he was crazy or something.
THE COURT: Like what?
[273] Q What did he look like when he was hitting
the man over the head with the lamp?
A I think it was as he was going down, something
like that.
THE COURT: What was your answer?
THE WITNESS: I think he was going down. He was
hollering for help then.
BY MR. KARR:
Q What did Brackett look like when he was hitting
the man over the head with the lamp?
A Looked like he was going crazy.
Q He did?
THE COURT: Like what?
THE WITNESS: Like he was going out of his mind.
MR. KARR: That’s all, Your Honor, thank you.
OPO PO Ppl p
A. 39
REDIRECT EXAMINATION
BY MR. SMITHSON:
Q Tell me, sir, had you ever been asked a question
about how he looked before, at the time he was doing this
beating? That is the defendant Brackett.
No, sir.
You have talked to no one about that?
No, sir.
Did you talk to Mr. Goldberg?
No, sir.
POP
a a & *
A. 40
Transcript of Sentencing, March 10, 1961
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Crim. No. 953-60
UNITED STATES
Vs
WALTER S. BRACKETT, RICHARD L. MCCRACKEN,
Defendants.
Washington, D. C.
March 10, 1961
The above cause came on before the HONORABLE
ALEXANDER HOLTZOFF, United States District
Judge, for sentencing.
APPEARANCES:
ON BEHALF OF THE GOVERNMENT:
VICTOR CAPUTY, ESQ.
Assistant U. S. Attorney
ON BEHALF OF THE DEFENDANTS:
JOHN W. KARR, ESQ.
MAX N. GOLDBERG, ESQ.
FOSTER WOOD, ESQ.
THE DEPUTY CLERK: Walter S. Brackett and
Richard McCracken.
A. 41
THE COURT: The Court will hear counsel for the
defendant Brackett.
MR. KARR: Thank you, your Honor. May it please
the Court, the only words I have to offer to the Court at
this time would be to ask the Court to consider, as I am
sure the Court has, the extreme youth of the defendant
Brackett. He is currently 15 years of age, and was at
the time this very [2] unfortunate crime was committed,
he was 14 years of age. I would, therefore, ask your
Honor to consider in terms of what might possibly be
done with this boy to salvage him both for himself and
society, to consider sentencing him under the Youth Cor-
rections Act. This would be all that I would offer, your
Honor.
THE COURT: Brackett, is there anything you would
like to say before sentence is imposed?
DEFENDANT BRACKETT: No, sir.
THE COURT: The Court will hear counsel for the
defendant McCracken.
MR. GOLDBERG: May it please the Court, I respect-
fully request in this action, this sentencing, a blend of
justice and leniency for Richard L. McCracken. He also
is a youth. I think the facts will bear out that he did not
take a prime part in the case as it finally ended up. He
did not take a prime part in the assault of the individual
whose life was lost. His age, he is a minor; his mentality,
I think that the facts in the psychological testing which
he underwent and I think the results of the psychiatric
examinations which he underwent will bear out that this
boy is of a low average mentality and, as a matter of fact,
is a borderline case. I respectfully represent to this Court
and respectfully request that this boy’s life is blemished
by this action and I ask the Court to refer this case to
the United States Justice Department—I ask that a rec-
ommendation be made to the United [3] States Justice
Department, Bureau of Prisons, that the boy be placed
under the Youth Correction Act.
A. 42
THE COURT: The Court does not make a recom-
mendation. You mean that the Court commit him under
the Youth Correction Act.
MR. GOLDBERG: Commit him under the Youth
Correction Act and that he not be confined in a peniten-
tiary for this crime.
THE COURT: The fact that these defendants are
young is not a mitigating circumstance so far as their
crime is concerned. They are really murderers. They
were allowed to plead guilty to manslaughter, but their
acts could have been held by the jury to constitute mur-
der. They were prisoners in the National Training School
for Boys, having been committed under the Federal Juve-
nile Delinquency Act for stealing automobiles. Each of
them has a bad record before this present commitment.
They were in a dormitory with 80 other prisoners. There
was only one guard during the night. He sat inside, im-
mediately inside the dormitory, at a desk. The door of
the dormitory was locked. It does seem to me that a
guard ought not to be in a locked room with 80 people
when he is in no position to call for help. There was not
even a push button, there was only a wall telephone.
These two defendants, in conjunction with the third
defendant, Jankowski, plotted to overpower the officer,
get the keys from him and make an escape during the
night. Brackett, [4] though he is the youngest of the
three, was the ring leader and he is apparently the most
vicious of the three.
By a prearranged signal they got out of their beds and
walked to the desk and Brackett grabbed a big heavy
brass lamp and began to beat the guard over the head
with that lamp and, in addition to that, used a big broom.
McCracken, according to the evidence, participated in the
beating by hitting the guard with his fist. The guard
was screaming and pleading for help but Brackett, par-
ticularly, did not let up the beating.
A. 43
The guard was eventually found on the floor in a pool
of blood. He was in a coma for a week and three weeks
later he died of this attack.
Now, obviously this is not a case for the Youth Cor
rections Act, both because of the nature of the offense
and the nature of the prior records of these defendants
The Court is more interested in the fate that befell the
guard than it is in the future of these two boys.
Now, if they have a spark of humanity—and every
human being has; some have a greater spark and some
a lesser, but everyone has—they will lie awake many a
night in a feeling of remorse for what they have done,
and if they have any spark of humanity they will spend
many an hour on their knees praying to God and implor-
ing God to forgive them.
Now, Brackett has shown vicious tendencies. In addi-
tion to plotting the escape plan involved in this case,
after he [5] pleaded guilty he tried to escape from the
Marshal’s van. He needs incarceration in a maximum
security institution.
I have already inquired of Brackett whether he has
anything to say. McCracken, have you anything to say
before sentence is pronounced?
DEFENDANT McCRACKEN: No, sir.
THE COURT: Walter S. Brackett, it is the judgment
of this Court that you be imprisoned in an institution to
be designated by the Attorney General of the United
States for a term of not less than five years and not more
than fifteen years. The Court recommends commitment
to a Federal institution of the maximum security type.
Richard L. McCracken, it is the judgment of this Court
that you be imprisoned in an institution to be designated
by the Attorney General of the United States for a term
of not less than five years and not more than fifteen years.
The Court will make no recommendation as to McCracken
because Brackett is the more vicious character.
|
A. 44
MR. CAPUTY: If your Honor please, the Government
moves to dismiss the remaining counts as to both defend-
ants.
THE COURT: Leave to dismiss is granted.
REPORTER’S CERTIFICATE
I, Gerald Nevitt, certify the foregoing 5 pages consti-
tute the official transcript of the stated proceedings.
/8/ Gerald Nevitt
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A. 45
Order of the Court of Appeals respecting petitioner’s
request for writ of mandamus, May 13, 1974
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SEPTEMBER TERM, 1973
No. 74-8027
74-742
WALTER STEVE BRACKETT,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
Before: Bastian, Senior Circuit Judge, and Robb, Cir-
cuit Judge
ORDER
In consideration of petitioner’s motion for leave to file
a petition for writ of mandamus in forma pauperis, and
of petitioner’s proffer of photocopies of receipts for cer-
tified mail indicating his attempts to file a motion to set
aside and vacate judgment of conviction in the District
Court, it is
ORDERED by the Court that petitioner’s aforesaid
motion and lodged petition for writ of mandamus are
remanded to the District Court for consideration in the
first instance.
A. 46
The Clerk is directed to transmit a copy of petitioner’s
pleadings with his other papers to the District Court
with a copy of this order.
Per Curiam
Hugh E. Kline
Clerk
United States Court of Appeals
for the District of Columbia Circuit
By: /s/ [Illegible]
Deputy Clerk
:
:
2
‘
’
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+
A. 47
Motion to Set Aside and Vacate Judgment of Conviction,
May 16, 1974
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 74-742
WALTER STEVE BRACKETT
Box PMB No. 0-4414-134
Atlanta, Georgia
Plaintiff
v.
UNITED STATES OF AMERICA
MOTION TO SET ASIDE AND VACATE
JUDGMENT OF CONVICTION
Now comes the plaintiff Walter Steve Brackett and
pursuant to Section 2255, Titie 18, moves this Court for
an order vacating and setting aside judgment of convic-
tion on March 10, 1961 for the offense of manslaughter.
Plaintiff is now unlawfully confined of his liberty in
the United States Penitentiary at Atlanta, Georgia.
Plaintiff says unto the court that his constitutional
rights were violated during the trial. Not only did the
court lack jurisdiction but the other violations of consti-
tutional rights robbed the court of jurisdiction and there-
fore it could not proceed to judgment. Plaintiff says
among others he now sets forth some of the violations.
1. Plaintiff was only fifteen years of age at the time
of the trial and only fourteen years at the time of
the alleged offense. Due to the age of the plaintiff
there was imposed upon the court the duty and re-
sponsibility of indulging every constitutional right
in his behalf.
A. 48
. The waiver as entered in the records of the Juvenile
Court of the District of Columbia did not conform
to due process law. See Kemplen v. State of Mary-
land, 428 F (2) 169 CCA 4 (1970). This case made
fuliy retroactive.
. There was ineffective assistance of counsel at plain-
tiff’s trial in that appointed counsel took no interest
in the case and failed to advise him of his rights
as to appellate procedure. See United States v. De-
Coster, USAppDC 72-1283 decided Oct. 4, 1973. This
case of course is fully retroactive.
. At the conclusion of plaintiff’s trial the trial judge
failed to sentence the plaintiff under the Youth Cor-
rections Act and in failing to do so did not make
an affirmative finding with specific reasons for fail-
ure so to do as required by a long line of opinions
from the Court of Appeals the latest of which is
United States v. Toy, 482 Fed (2) 741 decided July
13, 1973. Of course this case like the others is fully
retroactive.
. At the time of sentencing the trial judge took into
consideration past convictions of plaintiff (although
he was a juvenile) when he was not represented by
counsel. Of course United States v. Tucker prevents
this, 404 United States 443 (1972). This principle
of law was made fully retroactive by the latest Su-
preme Court ruling in Berry v. City of Cincinnati
decided by the Supreme Court of the United States
on November 5, 1972.
. Statements were elicited from the plaintiff while
said plaintiff was subject to the jurisdiction of the
juvenile court were used at the trial and said state-
ments were inadmissible. See Kent v. United States,
383 United States 1045.
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A. 49
7. The Court failed to accord plaintiff due process in
connection with his claim of insanity.
8. Section 2255, Title 18 is unconstitutional and in
this complaint plaintiff’s challenges the constitution-
ality of this form of post conviction relief—or in
any event he challenges the manner in which the
courts administer Section 2255.
It will be seen that constitutional questions raised by
plaintiff are serious and substantial and it will be readily
apparent that with a full plenary evidentiary hearing to
which plaintiff is entitled—with plaintiff present—he can
support his allegations. In fact, plaintiff says that the
government cannot deny or contradict his contentions.
Plaintiff recognizes that it is well understood—although
not admitted—that trial courts look with disfavor on post
conviction proceedings and try hard to adhere to the con-
cept of finality. It will be conceded that many such pro-
ceedings are obviously without merit and the courts have
no choice but to deal with them summarily. However, it
is another story when it is alleged that the constitutional
rights of an accused—as in plaintiff’s case—were violated
at the trial and the violations are set out one by one then
the court must grant an evidentiary hearing. Kaufman
v. United States, 394 United States 217, requires this. In
fact, the United States Court of Appeals for the District
of Columbia recognized this in United States v. Haywood,
150 USAppDC 247 (1972) set forth the standards for a
hearing. Of concern is the concurring opinion of Judge
Wilkey:
“T concur in Judge Fahy’s carefully reasoned opin-
ion and the action the court takes here, not because
I am convinced of the wisdom of it but because I
feel it is compelled by the Supreme Court’s 5-3 deci-
sion in Kaufman v. United States 217.”
A. 50
Plaintiff says it is well stated in Green v. United States,
158 Fed. Supl. 804:
“His detailed allegations must be such that if the
details were proved and not contradicted a court
would be justified in setting aside the sentences.”
In fact, the late Judge Prettyman in Mitchell v. United
States, 104 USAppDC 57 said virtually the same thing.
Now as to the merits.
1
Plaintiff was only fifteen years of age at the time of
trial and only fourteen years of age at the time of the
alleged offense. It will be conceded that due to the age
of plaintiff there was imposed upon the court the duty
and responsibility of indulging every presumption of the
waiver of any constitutional right. Although the trial
court was well aware of the age of plaintiff both at the
time of trial and at the time of the alleged offense the
plaintiff was treated at all times and under all circum-
stances as an adult. As to the waiver of constitutional
rights, see Patton v. United States, 281 United States
276 and the duty of the court as to waiver:
“And the duty of the trial court in that regard is
not to be discharged as a mere matter of rote but
with a sound and advised discretion with an eye to
avoid unreasonable or undue departures from that
mode of trial or from any of the essential elements
thereof and with a caution increasing in degree as
the offense dealt with increases in gravity.”
2
The waiver from Juvenile Court was unconstitutional
in that it did not conform to due process of law. There
was no hearing in Juvenile Court and plaintiff was with-
ee ——)
as eae Fe stent
A. 51
out counsel. See Kent v. United States, 383 U.S. at 541.
What was said in Kemplen v. State of Maryland is par-
ticularly appropriate to plaintiff.
“If the court finds that waiver was inappropriate
Kemplen’s conviction must be vacated. He may not
be tried again because he has served his full adult
sentence and is over 21”.
It goes without saying that in the matter of waiver
plaintiff was entitled to a hearing and to be represented
by counsel. This, of course, is a vital constitutional point
and would in itself void the conviction and sentence.
3
There was ineffective assistance of counsel within the
confines of the very recent opinion of this court in United
States v. DeCoster, 72-1283 decided Oct. 4, 1973. Counsel
originally appointed did not even talk with plaintiff. New
counsel was appointed and without inquiring of plaintiff
as to availability of witnesses and matters of defense
through misrepresentation and subterfuge induced plain-
tiff to enter a plea of guilty to manslaughter. The plea
was not voluntary. Of course it could hardly be expected
that a lad of 14 could understand the various ramifica-
tions of the consequences of a plea of guilty. When coun-
sel informed plaintiff that he had made a deal with the
prosecutor and what the prosecutor offered was the best
for plaintiff, the plaintiff relied on him. At that time
plaintiff believed that said counsel was acting in plaintiff’s
best interests and plaintiff did not dispute counsel’s
promises. In truth and in fact counsel was trying to take
the easy way out and make a disposition of the case.
4
The trial judge was in error in failing to sentence
plaintiff under the Youth Corrections Act and in failing
A. 52
to do so failed to make an affirmative finding for failing
to do so. It is necessary that there must be an affirmative
finding but the specific reasons must be set forth. This
was plainly sét forth in perhaps the most recent case
from the Court of Appeals United States v. Toy, 482 F
(2) 741 (1973). See also United States v. Coefield, 476
F (2) 1157 and United States v. Reed and Hoston, 476
Fed (2) 1150. In order to show just what is required
by the Court of Appeals there is annexed hereto as Ex-
hibit A. This involves correspondence between Judge
Gesell of this court and the corrections officer of the
District of Columbia and a number of questions are pro-
pounded. All of the above demonstrates that the trial
judge in plaintiff’s case not only disregarded the plain
language of the Youth Corrections Act but failed to set
forth the reasons for failing to do so.
5
At the time of sentencing the trial judge took into con-
sideration past convictions of plaintiff even though he was
a juvenile and was not represented by counsel. This can-
not be done under United States v. Tucker, 404 United
States 443 (1972). By this ruling a trial judge during
the sentencing process cannot take into consideration any
prior convictions when the accused was not represented
by counsel. United States v. Tucker was reinforced by
Argersinger V. Hamlin, 407 United States 25 and Arger-
singer was made fully retroactive by the very recent
case of Berry v. City of Cincinnati decided by the Su-
preme Court of the United States on November 5, 1973.
See also the recent case of Brown v. United States of
of America, CCA 4 decided August 1, 1973 (72-1312).
See also the frequently cited case of Lipscomb v. Clark,
468 F (2) 1321 CCA 5 (1972). This principle of law is
fully retroactive.
OS oe ORs Pen eeeee”. e
A. 53
6
Statements were elicited from the plaintiff while plain-
tiff was subject to the jurisdiction of the Juvenile Court
and used against him. He was not advised of his consti-
tutional rights nor was he told that he was not required
to make any statement. However, he was interrogated re-
lentlessly. All of this violated his constitutional rights.
See Kent v. United States, 383 United States 1045.
7
The trial court ignored plaintiff’s plea of insanity.
Plaintiff’s contention was that he was of unsound mind
at the time of the alleged offense. Considering the age of
plaintiff that put the court on notice that this defense
should have been carefully explored in accordance with
due process of law. Three psychiatrists examined him
at plaintiff’s request and testified that he was of unsound
mind at the time of the alleged offense. The record will
show that the court thereupon appointed three psychia-
trists to examine him at the D.C. Jail but could not say
that he was or was not insane at the time of the alleged
offense. The court did not follow through based on this
inconclusive testimony. ,
A motion was made by plaintiff that he be sent to St.
Elizabeth’s Hospital for complete observation and evalu-
ation to determine his mental status. This request was
denied. Of course this was a violation of plaintiff’s con-
stitutional rights. See Bush v. State of Texas, 372 United
States 586 (1963). Plaintiff’s case is far more compel-
ling than the case of Bush who was 64 years of age.
8
Plaintiff contends that Section 2255, Title 18, is un-
constitutional. It will be recognized that when the Con-
gress enacted Section 2255 it had in mind liberalizing the
A. 54
writ of habeas corpus—making it more accessible to one
deprived of his liberty through violation of his constitu-
tional rights. It has had the opposite effect. Had plain-
tiff been permitted to proceed by habeas corpus he would
have had an evidentiary hearing many years ago. The
government would have had to respond and make answer
within 13 days at the latest and then there would have
been a hearing and plaintiff would have been able to
testify as to the violation of his constitutional rights and
the court would have to release him—or award a new
trial—if he supported his contentions which plaintiff
could have done. Now what happens under Section 2255.
It is treated as a civil action and the government is al-
lowed 60 days to answer. Invariably the government gets
additional time. The plaintiff is then given an opportun-
ity to file an additional pleading. It then goes on the civil
calendar to await its call for trial. Thus months and
years can go by without a hearing—no matter how
vital the points raised. This practice amounts to a vir-
tual suspension of the writ of habeas corpus. There is
then a virtual escape clause since the case goes back t
the same judge. He can get around it by saying “the files
and records conclusively show that the plaintiff is en-
titled to no relief.” It is a rare judge indeed who will
admit he made a mistake. Even if Section 2255 is util-
ized the matter should not go back to the same judge.
These matters should go to another judge. It is well
stated in Halliday v. United States, 380 Fed (2), 279
CCA 1 (1967):
“In any event as unpleasant as it might be for
a judge to testify we consider it far worse that he
should be the trier of fact to determine his own
credibility.”
It seems strange indeed that the matter of the virtual
suspension of the writ of habeas corpus in 2255 proceed-
ings has never been passed upon by the Supreme Court.
——s
A. 55
Since plaintiff now challenges the constitutionality of
Section 2255 his case may be the one for the Supreme
Court to rule on this important question. As a matter of
fact the Ninth Circuit in Hayman v. United States, 187
Fed (2) 456 (1951) seemed to pave the way for a consti-
tutional test. It held 2255 unconstitutional but the Su-
preme Court dodged the constitutional point by reversing
on other grounds. This is indeed a vital issue and has not
been given the proper attention by text book writers and
law school periodicals. The matter has got to be re-
solved—but when? Sanders v. United States, 373 United
States, 1, said that in a 2255 proceeding the Congress in-
tended to provide a remedy exactly commensurate with
that which had been available by habeas corpus. In 59
Yale Law Review 1183 (1960) in dealing with the inade-
quacy of Section 2255:
“if the motion is to replace habeas corpus in
any given case it must provide an equivalent rem-
edy....”
In Glynn v. Donnelly, 470 Fed (2) 95 CCA 1 (1972)
the court said:
“Habeas corpus procedure is set out in 28 U.S.C.
2243. That section sets time limits for issuance of
show cause orders and for holding hearings and in
general manifests a policy that although civil in
nature habeas corpus petitions are to be handled
promptly.”
Since plaintiff in this proceeding challenges t»e con-
stitutionality of Section 2255 as virtually suspending the
writ of habeas corpus it is to be hoped that the court
will rule promptly on this contention.
* * * *
Plaintiff expresses the hope that this court will rule
expeditiously on his complaint. Plaintiff ventures the
prediction if this complaint is immediately given to the
ee Se ne
A. 56
Solicitor General of the United States he will cut through
the red tape and order plaintiff's immediate relief.
Plaintiff has not the slightest doubt that he has fully
met the criteria set forth in Green v. United States,
supra:
“His detailed allegations must be such that if the
details were proved and not contradicted a court
would be justified in setting aside the sentences.”
It must not be overlooked that United States v. Look-
retis, 398 Fed (2) 64 is authority for the proposition
that once a constitutional infraction has been shown the
government must prove beyond a reasonable doubt that
the error complained of did not contribute to the verdict
complained of.
Judge Weinfeld of the United States District Court for
the Southern District of New York has stated the mat-
ter well:
“One imprisoned under a void judgment is just
as properly deprived of his liberty as the most inno-
cent person. Further the law presumes innocence
until a valid judgment of conviction is entered. A
judgment void ab initio does not become vitalized by
mere passage of time and if void when entered is void
for all time.”
As to the claim of finality so often interposed by prose-
cuting and judicial officers, it is well to keep in mind the
words of Chief Justice Burger when he sat on the Court
of Appeals in Bostic v. United States, 293 Fed (2) 681:
“I agree that the passage of time whether five
years or twenty-five years cannot affect a valid claim
under Section 2255. That is what Congress intended
and that is what it should be.”
One must never be condemned for utilizing every legal
device available to erase an unlawful conviction. Let us
ty
- «2see eer
A. 57
take the case of Judge Kerner, Circuit Judge of the Sev-
enth Circuit. He is fighting his convictions to the hilt
and still drawing his salary. One can easily suppose th
the former Vice President—if he did not burn his bridges
behind him by pleading guilty—would have fought to the
limit. Then again, Justice Fortas of the Supreme Court,
who was permitted to resign to escape prosecution for
bribery, would have used every maneuver at his command
had he been indicted.
Respectfully submitted,
WALTER STEVE BRACKETT
Box P.M.B., No. 0-4414-134
Atlanta, Georgia 30315
A. 58
Opposition to Motion to Set Aside and Vacate Judgment
of Conviction, August 6, 1974
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 74-742
(Criminal No. 953-60)
WALTER STEVE BRACKETT,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
OPPOSITION TO MOTIONS TO SET ASIDE AND
VACATE JUDGMENT OF CONVICTION
Comes now the United States, by its attorney, the
United States Attorney for the District of Columbia, and
in opposition to the motion to vacate sentence pursuant
to 28 U.S.C. § 2255, fled May 16, 1974 represents to
the Court the following:
1. In September 1960 petitioner was a resident of
the National Training School for Boys of the District
of Columbia, having been committed there as a delinquent
by the Juvenile Court of the District of Columbia. On
September 11, 1960, William Lattimer, an officer at the
Training School was killed in an escape attempt from
the institution by petitioner and two other boys com-
mitted there. The escape attempt being unsuccessful,
petitioner remained in custody at the Training School,
now pursuant to homicide charges. On October 19, 1960,
jurisdiction over petitioner and two co-defendants (with
A. 59
respect to this offense) was waived by the Juvenile Court
of the District of Columbia.’ An indictment was then
returned against petitioner and his two co-defendants on
November 7, 1960, in the United States District Court
for the District of Columbia (Criminal Case Number
953-60) on first degree murder (D.C. Code § 22-2401
(1951)) and murder of an officer and employee of the
United States (18 U.S.C. $1114). Petitioner entered an
initial plea of not guilty to these charges.
It appears* petitioner was given a mental examina-
tion at the request of his attorney by Dr. Sol Charen
on November 28, 1960. Upon government’s subsequent
motion for mental examination (for purposes of both
the issues of competency and the insanity defense), such
an examination was ordered by the court on January
13, 1961." The result of this examination showed that
petitioner was competent to stand trial and that the com-
mission of the offense had been a product of his “psy-
chological makeup”’.*
Trial in petitioner’s and his two co-defendants’ case
began on January 30, 1961. Selection of a jury and
opening statements by the government and petitioner’s
1 Petitioner was 14 at the time of the offense and was 15 at the
time of trial.
* This representation appears as an allegation in the government’s
motion for a mental examination of petitioner dated December 19,
1960.
* Petitioner filed a written opposition to this motion on December
21, 1960.
* Initially the court ordered examination resulted only in a report
that petitioner was competent to stand trial, an allegation which
petitioner and his counsel had already asserted in opposition to the
government’s motion for the mental examination. Upon the court's
further direction that the examining psychiatrist form an opinion as
to petitioner’s mental state at the time of the offense, it was the
doctor’s opinion that the “offense grew out of the patient’s under-
lying psychological makeup. . .”.
|
A. 60
counsel were completed on the first day. On the second
day of trial, January 31, 1961, prior to the jury’s en-
tering the courtroom, petitioner’s two co-defendants
withdrew their previous pleas of not guilty and entered
pleas of guilty to voluntary manslaughter.’ These pleas
were accepted by the court and trial continued as to the
petitioner. The evidence produced by the government
on that second day of trial was directed to showing the
fact of death and expert testimony as to the cause of
death. The prosecution also called three of the boys
from the Training School * who testified as eyewitnesses
to petitioner’s attack and beating of the guard which
eventually led to the guard’s death. Further government
testimony from officers at the Training School was di-
rected to the apprehension of petitioner upon the failure
of the escape attempt.’ Trial was adjourned for the
day upon completion of this testimony.
At the beginning of the third day of the trial, pe-
titioner withdrew his plea of not guilty and entered a
plea of guilty to voluntary manslaughter. This plea was
accepted by the court upon petitioner’s notification of his
rights * and his waiver of them.
*In entering his plea, one of the co-defendants offered to testify
as a government witness as against petitioner.
* These three witnesses had not been involved in the escape
attempt.
’ The prosecutor specifically indicated to the court that he would
not bring out testimony regarding any statements made by peti-
tioner during this period. (Trial Transcript, hereinafter “Tr.”, at
258-59.) The record reflects that there was no testimony regarding
any statements.
* Defense counsel represented to the court that the petitioner had
been fully advised of his rights and that he voluntarily desired to
enter his plea. Additionally, the court expressly informed the peti-
tioner that he was under no obligation to enter the plea and that
he had the right to continue the trial and have a jury decide the
case.
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A. 61
On March 10, 1961, petitioner came before the court
for sentencing. Although petitioner’s counsel specifically
argued to the court for the imposition of a Youth Cor-
rections Act sentence (S. Tr. at 2°), the court specifically
rejected such a sentencing alternative and instead sen-
tenced petitioner as an adult to a term of five to fifteen
years imprisonment."°
On December 10, 1969, petitioner filed a motion to
vacate sentence pursuant to 28 U.S.C. § 2255 in this
court (Civil Action Number 3497-69). Petitioner alleged
the court had no jurisdiction to accept his guilty plea
because he was a juvenile and that the trial court failed
to proceed properly with respect to his insanity defense.
This court appointed counsel to represent petitioner.
Since the appointment of counsel over four years ago no
further action has been taken upon that case.
Petitioner is presently incarcerated in the Federal
Penitentiary, Atlanta, Georgia.
2. In the present action, petitioner challenges the va-
lidity of his conviction. Specifically, petitioner alleges:
(1) that the waiver of jurisdiction from the Juvenile
Court in his case failed to afford him due process of law;
(2) that he received ineffective assistance from his trial
counsel in that petitioner was not informed of his rights
to take an appeal; (3) that the sentencing judge failed
*“S. Tr.” refers to the transcript of petitioner’s sentencing on
March 10, 1961.
10 Petitioner was paroled from this sentence on August 1, 1967.
He was then returned to federal custody as a parole violator on Oc-
tober 9, 1970, pursuant to two convictions in the state court in
Montgomery, Alabama for forgery. Petitioner had received sen-
tences of 13 to 15 months on each of these convictions. Petitioner
was again paroled on May 15, 1972, but was again returned to fed-
eral custody as a parole violator on June 1, 1973, pursuant to con-
viction of possession of stolen property in the state court in Green-
ville, South Carolina. Petitioner received a sentence of ten years
pursuant to this conviction.
A. 62
to sentence him under the Youth Corrections Act and
failed to state specific reasons for not doing so; (4) that
in sentencing, the court took into consideration past con-
victions of pétitioner when he was not represented by
counsel; (5) that statements elicited from petitioner
while he was subject to the jurisdiction of the Juvenile
Court were used at his trial and were inadmissible;
(6) that the court failed to accord petitioner due process
with respect to his claim of insanity; and (7) that 28
U.S.C. § 2255 is an unconstitutional suspension of the
writ of habeas corpus.
3. In response to ‘petitioner’s claim that the waiver
of jurisdiction from the Juvenile Court did not comply
with due process, respondent submits petitioner is en-
titled to no relief. Petitioner relies on Kent v. United
Stutes, 383 U.S. 541 (1966) (waiver of juvenile court
jurisdiction valid only if hearing and counsel provided)
and Kemplen v. Maryland, 428 F.2d 169 (4th Cir. 1970)
(Kent applied retroactively). Respondents submit that
the Kent requirements do not apply to waiver of juris-
diction in petitioner’s case since it occurred five years
prior to the Kent decision. Although Kent has been made
retroactive by the Fourth Circuit as petitioner indicates,
the rule in this circuit is clear that Kent is not to be
applied retroactively. Mordecai v. United States, 137
U.S. App. D.C. 189, 195, 421 F.2d 1133, 1139 (1969),
cert. denied, 397 U.S. 977 (1970).
4. With respect to petitioner’s claim that he received
ineffective assistance from his trial counsel inasmuch
as he was not informed of a right to appeal, respondent
submits that since petitioner entered a guilty plea he
waived any rights to appeal and hence is entitled to no
relief on this allegation. Petitioner alleges also that he
relied on counsel’s advice to enter a guilty plea but now
claims he was induced to do so through “misrepresenta-
tion and subterfuge.” No facts are alleged in support
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A. 68
of this claim. Respondent submits that without indicat-
ing more specifically how he was misled or prejudiced,
these allegations must be considered insufficient as stat-
ing any grounds for relief. Sanders v. United States,
373 U.S. 1, 19 (1963); Torres v. United States, 469
F.2d 651 (9th Cir. 1972); United States v. Lowe, 367
F.2d 44 (7th Cir. 1966); Martinez v. United States,
299 F.2d 254 (6th Cir.), cert. denied, 371 U.S. 863
(1962); Wilkins v. United States, 103 U.S. App. D.C.
322, 258 F.2d 416 cert. denied, 357 U.S. 942 (1958).
5. Respondent submits that petitioner is entitled to
no relief on his claim that sentencing was improper with
respect to the consideration of the Youth Corrections Act
and the failure to state reasons why petitioner was not
sentenced thereunder. The recent opinion of the Supreme
Court in Dorszynski v. United States, US. .
No. 73-5284, decided June 26, 1974, is dispositive of
petitioner’s contention."' Dorszynski clearly indicates that
a court need not state the reasons why it does not sen-
tence pursuant to the Youth Corrections Act in a par-
ticular case.
6. With respect to petitioner’s claims regarding the
sentencing judge’s taking into consideration past con-
11 Even before Dorszynski, respondent submits that petitioner’s
reliance on United States v. Coefield, 155 U.S. App. D.C. 205, 476
F.2d 1152 (1973) is misplaced. Petitioner’s sentencing occurred
twelve years prior to the holding of Coefield. No authority has been
cited that the Coefield rule is to be given retroactive effect. Finally,
respondent submits that in view of petitioner’s present age, 28 no
relief by way of the Youth Corrections Act is now available to him.
In a similar case dealing with the potential application of a Youth
Corrections Act sentence to a petitioner who was no longer a
juvenile, the court in Mordecai v. United States, 137 U.S. App. D.C.
189, 421 F.2d 1133 (1969), cert. denied, 397 U.S. 977 (1970)
(Bazelon, C.J.) noted:
“Even if nonpunitive rehabilitation in the juvenile process
would have been the proper path in 1961, society can no longer
offer what was then, rightly or wrongly, denied.” 137 U.S. App.
D.C. at 194, 421 F.2d at 1138.
A. 64
victions of petitioner when he sas not represented by
counsel and claims that stateme::ts made by petitioner
while in the jurisdiction of the Juvenile Court were in-
admissible, respondent submits that petitioner is entitled
to no relief. Without indicating more specifically what
prior convictions or what statements or under what cir-
cumstances they were made, these allegations must be
considered insufficient as stating any grounds for reiief.
Sanders v. United States, 373 U.S. 1, 19 (1963); Torres
v. United States, 469 F.2d 651 (9th Cir. 1972); United
States v. Lowe, 367 F.2d 44 (7th Cir. 1966); Martinez
v. United States, 299 F.2d 254 (6th Cir.), cert. denied,
371 U.S. 863 (1962): Wilkins v. United States, 103 U.S.
App. D.C. 322, 258 F.2d 416, cert. denied, 357 USS.
942 (1958). Moreover, it is noted that with respect to
the claim of inadmissible statements, by entering a guilty
plea, petitioner waived the right to challenge these al-
leged infirmities. Finally, as noted in the earlier state-
ment of facts, the prosecution carefully avoided bring-
ing into evidence any statements which might have been
made by petitioner. (Tr. at 258-59).
7. In response to petitioner’s claim that he was not
accorded due process with respect to his insanity claim,
respondent submits that since petitioner entered a plea
of guilty during the presentation of the prosecution’s
ease in chief. Consequently, the issue of an insanity
defense was never before the court. Petitioner further
alleges that the court denied his motion to be sent to
Saint Elizabeths Hospital for observation and evaluation
of his mental status. Respondent submits that the record
shows no indication that any such motion was ever
made. To the contrary, the record reflects that petitioner
alleged he was competent to stand trial and that he
opposed the government’s motion for observation and
evaluation of his mental state.
Lhe Ws tat dein: Seta cena
es. ee ee ae or
Sai ee mei ssa Dee
—*
A. 65
8. Petitioner’s final contention is that 28 U.S.C. § 2255
is an unconstitutional suspension of the writ of habeas
corpus.** The weight of authority clearly indicates § 2255
suffers no such constitutional infirmity. Cantu v. Mark-
ley, 353 F.2d 696 (7th Cir. 1965); Stirone v. Markley,
345 F.2d 473 (7th Cir.), cert. denied, 282 U.S. 829
(1965); Madigan v. Wells, 224 F.2d 577 (9th Cir.),
cert. denied, 351 U.S. 911 (1955), United States v.
Anselai, 207 F.2d 312 (3d Cir.); cert. denied, 347 U.S.
902 (1952); Close v. United States, 398 F.2d 144 (4th
Cir.), cert. denied, 344 U.S. 879 (1952); St. Clair v.
Hiatt, 83 F. Supp. 585 (D.C. Ga.), aff'd, 177 F.2d 374
(1949).
WHEREFORE, it is respectfully submitted that the
motion to vacate be denied on the ground that the mo-
tion, files and records in this case conclusively show that
petitioner is entitled to no relief.
/s/ Earl J. Silbert
EARL J. SILBERT
United States Attorney
/s/ Oscar Altshuler
OscAR ALTSHULER
Assistant United States Attorney
4267036
2? Respondent notes the logical inconsistency posed by a challenge
to the constitutionality of § 2255 in a motion made pursuant to
that section. Close v. United States, 198 F.2d 144 (4th Cir.), cert.
denied, 344 U.S. 879 (1952).
a
A. 66
Order of the District Court denying petitioner’s request to
proceed in forma pauperis, August 29, 1974
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 74-742
Criminal No. 953-60
WALTER STEVE BRACKETT
vs
UNITED STATES OF AMERICA
ORDER
This matter is before the Court on petitioner’s Notice
of Appeal from this Court’s Order of August 5, 1974,
denying petitioner’s § 2255 petition. Pursuant to Rule 24
of the Federal Rules of Appellate Procedure, this Court
will not certify that this appeal is taken in good faith.
Subsequently, this Court similarly denies the petitioner
the right to proceed in forma pauperis.
Petitioner raised several issues in his § 2255 Motion,
each of which the respondent replied to fully and amply.
(See Respondent’s Opposition. . . . at 5-9). The Court
will not repeat each allegation, but adopts the responses
filed by respondent.
Additionally, the Court notes that petitioner continues
to serve time on this criminal conviction merely because
he has twice violated his parole. Petitioner was sentenced
to 5-15 years on March 10, 1961, after having entered a
plea of guilty to voluntary manslaughter. Thereafter,
petitioner was paroled from the sentence at issue on Au-
gust 1, 1967. He was returned to federal custody as a
A. 67
parole violator on October 9, 1970, pursuant to two state
court convictions for forgery. Petitioner received 13-15
months on each of these convictions. Petitioner was re-
paroled May 15, 1972, but was again returned as a parole
violator on June 1, 1973, pursuant to a state court convic-
tion for possession of stolen property. His sentence for
this conviction was 10 years.
It appears to this Court that allowing petitioner to pro-
ceed on appeal in forma pauperis would be a gross waste
of judicial time and taxpayer money. Petitioner has pre-
sented absolutely no issue which would merit further re-
view. Furthermore, even if (and this Court is confident
it could never happen) petitioner could advance an argu-
ment with merit, it would make no difference. Petitioner
is serving a 10 year sentence independent of any action
taken by this Court.
For the foregoing reasons, it is by the Court this 28th
day of August 1974,
ORDERED that petitioner’s Motion to Proceed in
Forma Pauperis should be and hereby is denied.
/s/ June L. Green
JUNE L. GREEN
U. S. District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.