Opinion
Criminal Action No. 69-21204-01-GTV
July 23, 2002
MEMORANDUM AND ORDER
The court has under consideration the defendant's Petition for Writ of Error Coram Nobis (Doc. 96). Defendant fled to Africa while on bail after his conviction, remains a fugitive, and seeks to have the court address his claims of trial errors. This is the second such petition Defendant has filed in this court. The first petition for a writ of error coram nobis was denied July 28, 1998, by the late Judge Earl E. O'Connor of this court. See United States v. O'Neal, 8 F. Supp.2d 1272 (D.Kan. 1998). Judge O'Connor also denied Defendant's later filed motion for reconsideration. See United States v. O'Neal, 28 F. Supp.2d 1211 (D.Kan. 1998). Judge O'Connor's decisions were based on the doctrine that fugitives in criminal cases are disentitled to have their post-conviction claims adjudicated on the merits. Because the defendant remains a fugitive after having been sentenced in this case, the doctrine of disentitlement continues to apply, and as explained in this order, the petition is denied.
The factual background of this case is set out in Judge O'Connor's opinions, but the court will recount such facts as are necessary to this order. Defendant was convicted in a jury trial in this court of the offense of the interstate transportation of a firearm after he had been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). The verdict was returned September 3, 1970, and on October 3, 1970, Defendant was sentenced to four years imprisonment. Defendant appealed his conviction and sentence to the Tenth Circuit Court of Appeals, and remained free on bail pending the appeal. Defendant was directed to appear before the district court on December 28, 1970, for a determination of modification of his conditions of release. He did not appear. He had fled to Algeria, and two years later to Tanzania, where he remains to the present time.
Applying the disentitlement doctrine, the Tenth Circuit dismissed Defendant's appeal on January 4, 1972. See United States v. O'Neal, 453 F.2d 344, 345 (10th Cir. 1972) (citing Molinaro v. New Jersey, 396 U.S. 365, 366 (1970)). The court of appeals noted that "appellant has absconded and defies the authority of the court. In such circumstances we feel he is in no position to insist upon the hearing and determination of the merits of his appeal." Id. The court gave Defendant thirty days to surrender for reinstatement of his appeal, but he did not do so.
Defendant's present petition asks that the court vacate his 1970 conviction, and order a new trial, for which the petition states that Defendant pledges to be present. In support of the request Defendant states that he is prepared to offer new evidence that: (1) two of the prosecution's key witnesses offered perjured testimony at the 1970 trial; (2) the prosecution withheld that one of its witnesses was a paid informant; and (3) local police had threatened Defendant's life before and during his trial. In addition, Defendant states in the petition that he continues to maintain issues raised in his first petition to the effect that a number of trial errors in the application of law and admission of evidence were committed. This court continues to decline to consider the merits of the petition; this decision is based on the disentitlement doctrine and Defendant's failure to pursue issues on direct appeal.
It is well-established that fugitives in criminal cases generally are not entitled to have their post-conviction claims adjudicated on the merits. See Estelle v. Dorrough, 420 U.S. 534, 537 (1975) ("Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law."); Molinaro, 396 U.S. at 366; Smith v. United States, 94 U.S. 97, 97 (1876) ("It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render."). The rule is also applied in the context of applications for habeas relief. See Gonzales v. Stover, 575 F.2d 827, 828 (10th Cir. 1978); see also United States v. Bravo, 10 F.3d 79, 83 (2d Cir. 1993) (citations omitted) ("` [O]n a claim for post-conviction relief, as on direct appeal, one who has escaped from custody is not entitled'" to a determination of his claims by the court), cert. denied, 511 U.S. 1011 (1994). In Molinaro, the Supreme Court explained:
No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.Id. 396 U.S. at 366.
As Judge O'Connor observed in O'Neal, 8 F. Supp.2d at 1274: "A fugitive should not be able to benefit by a positive adjudication of his claims without submitting himself to the risks of an unfavorable decision." Defendant asserts that the disentitlement doctrine should not apply to his case because "his absence was due to matters completely beyond his control." He cites United States v. Holmes, 680 F.2d 1372, 1373 (11th Cir. 1982) in support of that argument. The opinion in Holmes does not address the question of what might be considered as matters completely beyond one's control. The argument bears close analogy to the defense of duress in the context of a prosecution for an escape. The Supreme Court, in United States v. Bailey, 444 U.S. 394, 411 (1980) concluded that in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.
The defendant here has offered nothing to show that the claimed duress continues to have coercive force. In fact, he states in his affidavit attached to the petition that "I would be happy to return to the US for a new trial, if the Court would consider my case on its merits. . . ." Once again, Defendant risks nothing by filing this second petition. His offer to return to custody gainsays his assertion that his absence is due to matters completely beyond his control. The court declines to consider the merits of the petition in light of Defendant's fugitive status. See United States v. Swigart, 490 F.2d 914, 915 (10th Cir. 1973) ("[A]ny court has the inherent discretion to refuse to hear the claims of a litigant who is willing to comply with that court's decree only if it is favorable").
Once again, adjudication of the merits of Defendant's petition would be contrary to the Tenth Circuit's resolution of his direct appeal. See O'Neal, 453 F.2d at 345. Defendant has been a fugitive for more than thirty years, and has never made a bona fide effort to surrender or return to custody. This court concludes that the Tenth Circuit's ruling that Defendant must submit to the custody of this court or forego any potential post-conviction remedies has not been altered.
IT IS, THEREFORE, BY THE COURT ORDERED, that Defendant's Petition for Writ of Error Coram Nobis (Doc. 96) is denied. The clerk is directed to transmit copies of this order to counsel of record.