The opinion of the court was delivered by: WYATT
This is a motion under 28 U.S.C. § 2255 by Raymond Miranda, acting for himself and without counsel, to vacate and set aside the sentence imposed by this Court on September 26, 1968 (on indictment 68 Cr. 207) and under which Miranda is now in custody at the United States Penitentiary in Atlanta, Georgia.
The indictment (68 Cr. 207), returned on March 4, 1968, charged Miranda and Antonio Rivera in one count with receipt etc. of heroin, a narcotic drug (21 U.S.C. §§ 173, 174).
On August 22, 1968 Miranda pleaded guilty. He was represented by appointed counsel, Bernard Moldow, Esq., then of the Legal Aid Society and now a Judge of the New York City Criminal Court.
On September 26, 1968, after hearing appointed counsel and after allocution, sentence was imposed. The sentence was to imprisonment for six years.
By letter dated November 19, 1968, Miranda requested a reduction of sentence. Treating the letter as a motion to reduce sentence, the motion for reduction of sentence was denied by order filed December 2, 1968.
The papers on the present motion were mailed by Miranda on April 1, 1969. An order of Judge Motley permitting Miranda to proceed under 28 U.S.C. § 1915 motion papers themselves were filed on April 17, 1969.
The grounds for the present motion are: (1) that at the time of the guilty plea Miranda was "too incompetent to understand the proceedings, or to properly assist in his own defense"; (2) that at time of sentence Miranda was "too incompetent to stand trial" and "in his mentally limited way protested sentence being imposed"; (3) that the representation by appointed counsel was "incompetent" because at the time of entry of the plea of guilty counsel knew that Miranda was "confined in restraints at Ricker's Island, N.Y. Hospital Psychiatric Ward"; (4) that the rights of Miranda were "abridged" by the United States Attorney because, with "prior knowledge of sufficient evidence for a conclusive suspicion of movant's mental competency" the United States Attorney failed to move for a judicial determination of competency; and (5) that the Court, before accepting the plea of guilty and before imposing sentence, should have made a judicial determination of "mental competency" (citing 18 U.S.C. § 4244) because the Court had before it "irrefutable conclusive evidence of suspicion of movant's mental competency". The relief sought is that Miranda be released from custody.
By papers filed April 29, 1969, Miranda made a second motion. This was for his production in Court and for the appointment of counsel to represent him. A separate order on that second motion is being filed.
By papers filed August 20, 1969, Miranda made a third motion. This was for his examination by an "independent psychiatrist" and for an amendment to his principal motion. The amendment alleges that at the time his guilty plea was entered he was produced in court by a writ of habeas corpus, that the officers executed the writ by bringing Miranda from the Rikers Island Hospital Psychiatric Ward, that they had a duty so to inform the Court, that the probation officer investigated Miranda and if this were properly done then the probation officer concealed the fact that when the guilty plea was entered Miranda was in the psychiatric ward at Rikers Island "under heavy medication and psychiatric treatment for attempted suicide and narcotic addiction". The charge is that material evidence was suppressed by officers of the Court. A separate order on that third motion is being filed. The amendment is allowed and considered on the present motion.
The averments of Miranda to show that he was incompetent at time of guilty plea and sentence are: that at time of guilty plea he was held "in restraints" in the psychiatric ward at Rikers Island "due to attempted suicide and heavy narcotic medication"; that he had also previously attempted suicide; that he had been a drug addict since 1955; that he had been continuously under the influence of narcotics for some 16 months before his arrest on the federal charge; that while confined after his arrest by federal officers he "became incompetent"; that he was "still under heavy narcotic sedation" when he was brought to this Court and pleaded guilty and that at the time of sentence Miranda was "too incompetent to stand trial" and "in his mentally limited way protested sentence being imposed". There is no averment by Miranda that he was given any medication, "narcotic sedation" or otherwise, after August 22, 1968 and before sentence on September 26, 1968.
A motion seeking to vacate and set aside a judgment of conviction and sentence on the grounds of mental incompetence at the time of pleading may properly be made under 28 U.S.C. § 2255. Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 (1956) (per curiam). United States v. Cannon, 310 F.2d 841 (2d Cir. 1962). The Court is required to grant Miranda a prompt hearing on his motion "* * * [unless] the motion and the files and records of the case conclusively show that * * * [he] * * * is entitled to no relief." 28 U.S.C. § 2255.
The files of this Court in the custody of the Clerk and the notes of the Court reporter are clearly "files and records of the case" as those words are used in 28 U.S.C. § 2255. So also is the presentence report of the probation officer, Streator v. United States, 395 F.2d 661, 662 (5th Cir. 1968) (per curiam).
The United States Attorney at my request submitted process copies of the medical records of Miranda while he was in federal custody after his arrest on the federal charge and also while he was in the custody of correction officers of the City of New York and was at the Hospital on Rikers Island. These seem clearly to be "files and records of the case". Such appears to have been assumed by our Court of Appeals in United States v. Falu, 421 F.2d 687 (1969) (per curiam).
In Falu, Judge Cooper had denied, without a hearing, a motion made under Section 2255 by Falu, a federal prisoner, to vacate and set aside his sentence on the ground that he had been under the influence of narcotics at the time of his guilty plea and at the time of sentencing. In determining that Falu had not been under the influence of narcotics at the time of his guilty plea, Judge Cooper relied on Falu's medical records from Federal Detention Headquarters at West Street, which records were attached (Exhibit C) to an affidavit filed in opposition to the motion by the United States Attorney. These records showed that Falu had not been given any drugs for the treatment of his narcotic addiction within thirty-six hours before his plea of guilty. Judge Cooper referred to the medical records as "files and records of this case". The Court of Appeals affirmed, but without discussing the specific point as to the medical records.
On the basis of the "files and records of the case", as above described, it is conclusively shown that Miranda is entitled to no relief; the motion should ...