Petitioner was indicted and convicted on three counts charging
violations of the Federal Bank Robbery Act, 18 U.S.C. § 2113, by
taking property by force and violence and assaulting and
jeopardizing the lives of several persons in the course of the
taking, in violation of § 2113(d), receiving the stolen property,
in violation of § 2113(c), and conspiring to violate the Act. He
was sentenced to 10 years' imprisonment on the first of these
counts, three years on the conspiracy count, and a year and a day
on the count charging receipt of the stolen property, the three
sentences to run consecutively. While still in custody under the
admittedly valid 10-year sentence, he moved for correction of the
sentence, claiming that he could not be lawfully convicted under
both subsection (c) and (d) of § 2113 for feloniously receiving and
feloniously taking the same property.
Held:
1. Relief under 28 U.S.C. § 2255 is available only to attack a
sentence under which the prisoner is in custody, but relief was
available to petitioner under Rule 35 of the Federal Rules of
Criminal Procedure, which authorizes the correction of an illegal
sentence "at any time." Pp.
358 U. S.
417-418.
2. The separate sentence under 18 U.S.C. § 2113(c) for receiving
the stolen property was invalid, since that subsection was not
designed to increase the punishment for one who robs a bank, but
only to provide punishment for those who receive the loot from the
robber.
Prince v. United States, 352 U.
S. 322. Pp.
358 U. S.
419-420.
251 F.2d 69, reversed.
Page 358 U. S. 416
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner and two others were indicted and convicted under
three counts charging violations of the Federal Bank Robbery Act,
18 U.S.C. § 2113. One count charged taking the property by force
and violence, and assaulting and jeopardizing the lives of several
persons in the course of the taking, in violation of § 2113(d).
[
Footnote 1] Another count
charged that they did "receive, possess, conceal, store, and
dispose" of the stolen money in violation of § 2113(c). [
Footnote 2] A third count charged a
conspiracy. The sentence imposed [
Footnote 3] was 10 years on the first count mentioned
above, 3 years on the conspiracy count to begin to run on
expiration of the first, and 1 year and 1 day on the count charging
receipt of the stolen property, this sentence to begin to run on
expiration of the sentence on the conspiracy count.
All these events took place before our decision in
Prince v.
United States, 352 U. S. 322.
Shortly thereafter, petitioner instituted this proceeding under 28
U.S.C. § 2255, [
Footnote 4]
Page 358 U. S. 417
complaining that he could not be lawfully convicted under both
subsections (c) and (d) of § 2113,
i.e., of feloniously
receiving and feloniously taking the same property. The District
Court denied the motion. The Court of Appeals affirmed. 251 F.2d
69. We granted certiorari (357 U.S. 935) because of an apparent
conflict between that decision and the
Prince case.
I. There is a preliminary question of jurisdiction. Petitioner
is now in custody under the 10-year sentence, which admittedly is
valid. Since he has not completed that sentence nor the consecutive
conspiracy sentence, it is argued that relief by way of § 2255 may
not be had.
We reviewed in
United States v. Hayman, 342 U.
S. 205, the history of § 2255 and emphasized that its
purpose was to minimize some of the difficulties involved in the
use of habeas corpus. It is now argued that, when consecutive
Page 358 U. S. 418
sentences are imposed, § 2255, no more than habeas corpus
(
McNally v. Hill, 293 U. S. 131,
293 U. S.
138), can be used to question a sentence which the
prisoner has not begun to serve. The Court is divided on that
issue. Some think that, when § 2255 says "A motion for such relief
may be made at any time," it means what it says. To them, the
correction of sentence, if made, will affect "the right to be
released," protected by § 2255, even though that right will not be
immediately realized. A majority, however, are of the view, shared
by several Courts of Appeals, [
Footnote 5] that § 2255 is available only to attack a
sentence under which a prisoner is in custody. Yet, in their view,
relief under Rule 35 of the Federal Rules of Criminal Procedure
[
Footnote 6] is available (at
least where matters
dehors the record are not involved),
the only question here being whether the sentence imposed was
illegal on its face. [
Footnote
7]
Page 358 U. S. 419
II. We held in
Prince v. United States, supra, that the
crime of entry into a bank with intent to rob was not intended by
Congress to be a separate offense from the consummated robbery. We
ruled that entering with intent to steal, which is "the heart of
the crime,"
id. at
352 U. S. 328,
"merges into the completed crime if the robbery is consummated."
Ibid. We gave the Act that construction because we resolve
an ambiguity in favor of lenity when required to determine the
intent of Congress in punishing multiple aspects of the same
criminal act.
Subsection (c) of § 2113, with which we are now primarily
concerned, came into the law in 1940. The legislative history is
meagre. The Senate Report (S.Rep.No.1801, 76th Cong., 3d Sess.) is
captioned "Punishment for Receivers of Loot From Bank Robbers." The
Report states,
"This bill would add another subsection to further make it a
crime, with less severe penalties (maximum $5,000 fine and 10 years
imprisonment, or both) to willfully become a receiver or possessor
of property taken in violation of the statute,"
p. 1. Similarly the House Report states,
"Present law does not make it a separate substantive offense
knowingly to receive or possess property stolen from a bank in
violation of the Federal Bank Robbery Act, and this bill is
designed to cover the omission."
H.R.Rep.No.1668, 76th Cong., 3d Sess., p. 1.
This clue to the purpose of Congress argues strongly against the
position of the Government. From these Reports, it seems clear that
subsection (c) was not designed to increase the punishment for him
who robs a bank, but only to provide punishment for those who
receive the loot from the robber. We find no purpose of Congress to
pyramid penalties for lesser offenses following the robbery. It may
be true that, in logic, those who divide up the loot following a
robbery receive from robbers, and thus multiply the offense. But,
in view of the legislative history
Page 358 U. S. 420
of subsection (c), we think Congress was trying to reach a new
group of wrongdoers, not to multiply the offense of the bank
robbers themselves.
Reversed.
[
Footnote 1]
This subsection provides:
"Whoever, in committing, or in attempting to commit, any offense
defined in subsections (a) and (b) of this section, assaults any
person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be fined not more than $10,000 or
imprisoned not more than twenty-five years, or both."
[
Footnote 2]
This subsection states:
"Whoever receives, possesses, conceals, stores, barters, sells,
or disposes of, any property or money or other thing of value
knowing the same to have been taken from a bank, or a savings and
loan association, in violation of subsection (b) of this section
shall be subject to the punishment provided by said subsection (b)
for the taker."
[
Footnote 3]
This was a corrected sentence imposed after the appeal, as
reported in
Heflin v. United States, 223 F.2d 371.
[
Footnote 4]
Section 2255 reads in relevant part as follows:
"A prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation 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 maximum authorized by law, or is otherwise subject to
collateral 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 jurisdiction, 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 constitutional
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. . . ."
62 Stat. 967, amended 63 Stat. 105.
[
Footnote 5]
United States v. Bradford, 194 F.2d 197;
United
States v. McGann, 245 F.2d 670;
United States ex rel.
Bogish v. Tees, 211 F.2d 69, 71;
Fooshee v. United
States, 203 F.2d 247;
Duggins v. United States, 240
F.2d 479;
Crow v. United States, 186 F.2d 704;
Oughton
v. United States, 215 F.2d 578;
Hoffman v. United
States, 244 F.2d 378;
Miller v. United States, 256
F.2d 501.
[
Footnote 6]
Rule 35 provides in part: "The court may correct an illegal
sentence at any time."
[
Footnote 7]
Since the motion under Rule 35 is made in the original case, the
time within which review by certiorari of the Court of Appeals
decision should be sought is 30 days. Supreme Court Rule 22(2). The
petition for writ of certiorari in this case was not filed until
after the passage of 30 days from the judgment below. Nevertheless,
because successive motions may be made under Rule 35 and because no
jurisdictional statute is involved, the majority agrees to dispense
with the requirements of our Rule in order to avoid wasteful
circuity. To those of us who deem that § 2255 is available, there
is no question but that the petition was in time. It was filed
within the 90-day period provided by 28 U.S.C. § 2101(c) governing
this type of suit. For a motion under § 2255, like a petition for a
writ of habeas corpus (
Riddle v. Dyche, 262 U.
S. 333,
262 U. S.
336), is not a proceeding in the original criminal
prosecution, but an independent civil suit.
MR. JUSTICE STEWART, whom MR. JUSTICE FRANKFURTER, MR. JUSTICE
CLARK, MR. JUSTICE HARLAN, and MR. JUSTICE WHITTAKER join,
concurring.
While joining the Court's opinion, I think it clear that a
motion for relief under 28 U.S.C. § 2255 is available only to
attack a sentence under which a prisoner is in custody. That is
what the statute says. That is what the legislative history shows.
That is what federal courts, faced almost daily with the statute's
application, have unanimously concluded. Personal notions as to the
kind of a post-conviction statute that Congress might have enacted
or should enact are, of course, entirely irrelevant to the
inquiry.
First. The words which Congress has used are not
ambiguous. Section 2255 provides that:
"A prisoner in custody under sentence . . .
claiming the
right to be released . . . may move the court which imposed
the sentence to vacate, set aside, or correct the sentence."
The statute further provides: "A motion for such relief may be
made at any time." This latter provision simply means that, as in
habeas corpus, there is no statute of limitations, no
res
judicata, and that the doctrine of laches is inapplicable.
Second. The legislative history of § 2255 is reviewed
at length in the opinion which Mr. Chief Justice Vinson wrote for
the Court in
United States v. Hayman, 342 U.
S. 205. No chronicle of the genesis and purpose of a
legislative enactment could be more authentic, because almost the
entire legislative history is to be found in the deliberations and
recommendations of the Judicial Conference
Page 358 U. S. 421
of the United States, over which Mr. Chief Justice Vinson then
presided. The opinion in
Hayman clearly shows that "the
sole purpose" of the statute "was to minimize the difficulties
encountered in habeas corpus hearings by affording the same rights
in another and more convenient forum." 342 U.S. at
342 U. S. 219.
Those difficulties are detailed in the opinion. There is not one
word to indicate any intent to alter the basic principle of habeas
corpus that relief is available only to one entitled to be released
from custody.
The very office of the Great Writ, its only function, is to
inquire into the legality of the detention of one in custody. It is
unnecessary to paraphrase here Mr. Justice Stone's penetrating
discussion in
McNally v. Hill, 293 U.
S. 131, or to incorporate the thorough review of legal
history there contained. It will suffice to note only the Court's
conclusion:
"Without restraint of liberty, the writ will not issue. . . .
Equally, without restraint which is unlawful, the writ may not be
used. A sentence which the prisoner has not begun to serve cannot
be the cause of restraint which the statute makes the subject of
inquiry."
(Citations omitted.) 293 U.S. at
293 U. S.
138.
Third. It is something of an understatement simply to
say that these views are "shared by several Courts of Appeals." So
far as I have been able to find, these courts, at least since the
Hayman decision, have been unanimous in holding that a
motion under § 2255 may be filed only by a prisoner claiming the
right to be released. These are the courts continually faced with
problems arising under § 2255, and many of them have given careful
consideration to this very issue.
United States v.
Bradford, 194 F.2d 197;
United States v. McGann, 245
F.2d 670;
United States ex rel. Bogish v. Tees, 211 F.2d
69, 71;
Fooshee v. United States, 203 F.2d 247;
Duggins v. United
Page 358 U. S. 422
States, 240 F.2d 479;
Juelich v. United
States, 257 F.2d 424;
Oughton v. United States, 215
F.2d 578;
Williams v. United States, 236 F.2d 894;
Hoffman v. United States, 244 F.2d 378;
Toliver v.
United States, 249 F.2d 804;
Miller v. United States,
256 F.2d 501;
Smith v. United States, 259 F.2d 125.
Although believing that relief in this case was not available
under § 2255, I think, and indeed the Government concedes, that
relief was available to the petitioner by virtue of Rule 35 of the
Fed.Rules Crim.Proc. That rule provides: "The court may correct an
illegal sentence at any time." The rule became effective more than
two years before the enactment of § 2255, and has an entirely
different history. It was a codification of existing law, and was
intended to remove any doubt created by the decision in
United
States v. Mayer, 235 U. S. 55,
235 U. S. 67, as
to the jurisdiction of a District Court to correct an illegal
sentence after the expiration of the term at which it was entered.
*
Whether Rule 35 covers the broader field of collateral attack
where a hearing to consider matters
dehors the record is
necessary, we need not here determine. The Rule certainly covers a
case like the present one, where the claim is that the sentence
imposed was illegal on its face. For this reason, and because I
agree with the Court's construction of the Federal Bank Robbery
Act, I concur in the opinion and the judgment.
*
See Judge Shackelford Miller's discussion of the
relationship between § 2255 and Rule 35 in
Duggins v. United
States, 240 F.2d 479.