Mercado v. United States, 183 F.2d 486, 1st Cir. (1950)
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Scribd Government DocsMercado v. United States, 183 F.2d 486, 1st Cir. (1950)
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Scribd Government Docs183 F.
2d 486
MERCADO
v.
UNITED STATES.
No. 4478.
United States Court of Appeals First Circuit.
July 13, 1950.
Francisco Mariano Mercado Gomez, pro se.
Francisco Ponsa Feliu, Acting U. S. Atty., and Pascual Amado Rivera,
Asst. U. S. Atty., both of San Juan, Puerto Rico, for appellee.
Before MAGRUDER, Chief Judge and WOODBURY and FRANK,
Circuit Judges.
WOODBURY, Circuit Judge.
The appellant, Mercado Gomez, pleaded guilty in the court below to both
counts of an indictment charging him, respectively, with the transportation of a
revolver, and with the transportation of revolver ammunition for the same, and
thereupon he was sentenced to two years on each count, the sentences to run
consecutively. These events occurred on March 25, 1949. Subsequently, on
December 21, 1949, while serving the sentence imposed on the first count, he
filed a verified motion for correction of sentence under 28 U.S.C.A. 2255 in
which he asked that the sentence on the second count be vacated and set aside
for the reason that the transportation of the revolver and the transportation of
the revolver ammunition at one and the same time constituted but one offense
for the purpose of sentence. The District Court denied the motion on January
20, 1950, and the appellant filed his notice of appeal 22 days later on February
11, 1950.
At the outset we are confronted with the question of the timeliness of the
appellant's notice of appeal. The Government advances the same contention in
this case that it advanced in Houston v. United States, now pending in the
United States Court of Appeals for the District of Columbia, that is, that the
appeal is untimely for the reason that proceedings under Sec. 2255 supra, are
essentially criminal in nature, and hence that the time for taking an appeal from
an order entered in such proceedings is limited to 10 days by Rule 37(a) (2) of
the Federal Rules of Criminal Procedure, 18 U.S.C.A. This, the Government
says, is for the reason that motions under the section must be filed in the same
court which imposed the sentence, that the parties are the same as the parties to
the original criminal action, and that the court has power under the section to
resentence the prisoner- a power not given to a court in a civil proceeding. We
recognize force in the contention, but it does not stand unopposed.
3
The Reviser's Note with respect to Sec. 2255 emphasizes and makes certain the
clear indications of its provisions by pointing out that: 'This section restates,
clarifies and simplifies the procedure in the nature of the ancient writ of error
coram nobis. It provides an expeditious remedy for correcting erroneous
sentences without resort to habeas corpus.' And the courts are not in agreement
as to whether writs of error coram nobis are separate proceedings of a civil
nature distinct from the criminal proceeding in which the final judgment sought
to be corrected was originally entered. See Bruno v. United States, D.C. Cir.,
180 F.2d 393, 395. Furthermore the section provides a substitute in large
measure for habeas corpus, which has always been regarded as a civil
proceeding, and moreover, when Congress recently revised and enacted into
law both title 28 of the United States Code entitled 'Judicial Code and
Judiciary', and title 18 of the United States Code entitled 'Crimes and Criminal
Procedure', as Titles 28 and 18, respectively, United States Code, it saw fit to
place the section in the former rather than the latter title, thereby giving at least
some indication that it considered proceedings under the section to be civil
rather than criminal in nature.
For present purposes, however, we see no occasion to consider whether the
instant proceeding is criminal or civil in nature, or whether perhaps it is by
nature a sort of hybrid, for the section itself in its paragraph six categorically
provides that, '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', and appeals from such orders by virtue of Rule 81(a)(2) Fed.
Rules Civ. Proc. 28 U.S.C.A. are governed by Rule 73, id. which, in accord
with Title 28 U.S.C.A. 2107, allows 60 days from the date of the entry of the
judgment or order appealed from as the time within which an appeal may be
taken in any action in which the United States or an officer or agency thereof is
a party. The Government contends, however, that this sentence should not be
construed so broadly as to make the taking of appeals from orders entered on
motions under Sec. 2255 identical in all respects with the taking of appeals
from final judgments on applications for habeas corpus. This, it says, is for the
reason that the purpose of the sentence was only to give the Government the
same right of appeal it enjoyed in habeas corpus proceedings, and also to insure
that the scope of appellate review should be the same in both proceedings. The
short answer to this contention is that if Congress had intended its words to
have the limited construction contended for we think it would, as it easily
could, have used appropriate language to express that limited meaning. Having
spoken generally we construe the words used as they read. And this more
liberal construction seems to us appropriate since Sec. 2255 was designed to
provide a substitute for habeas corpus in the great majority of cases, and habeas
corpus has long been regarded as a proceeding in which a liberal judicial
attitude is peculiarly appropriate in view of the broadly remedial nature of the
writ.
5
We, therefore, consider the instant appeal timely, and hence we come to the
merits. They need not detain us long, however. In fact we dispose of the merits
on the authority of the decision of this court in Rivera v. United States, 1 Cir.,
151 F.2d 47, in which after consideration, it was held that an indictment in two
counts in all material respects identical with this was valid, and charged
separate offenses in each count for the reason that the transportation of a
revolver, and the transportation of ammunition for it at one and the same time,
constituted two separate and distinct offenses. Therefore, since the offense
charged in one count does not include the offense charged in the other, cf.
Ekberg v. United States, 1 Cir., 167 F.2d 380, separate sentences may be
imposed on each count.
