Appeal from a judgment entered in the United States District Court for the Southern District of New York, Edward Weinfeld, Judge, denying appellant Edward Grimes' petition under 28 U.S.C. § 2255 to vacate certain convictions and sentences arising out of his involvement in two separate bank robberies. 444 F. Supp. 78 (S.D.N.Y. 1977). The Court of Appeals determined that Grimes was entitled to invoke § 2255, and that he raised issues that are cognizable thereunder. The Court of Appeals held that separate judgments of conviction for bank robbery, 18 U.S.C. § 2113(a), and armed bank robbery, 18 U.S.C. § 2113(d), may not be entered when those convictions arise out of a single criminal transaction. The Court of Appeals also held that the government may not prosecute a defendant under 18 U.S.C. § 924(c)(1) for use of a firearm to commit a felony when the underlying felony, armed bank robbery, is prosecutable under 18 U.S.C. § 2113(d). Affirmed in part and reversed in part.
Before Moore, Feinberg and Meskill, Circuit Judges.
This appeal raises interesting questions regarding the proper relationship between two specific sections of the Federal Bank Robbery Act 18 U.S.C. § 2113(a) (bank robbery) and 18 U.S.C. § 2113(d) (armed bank robbery) as well as the relationship between § 2113(d) and part of the Gun Control Act of 1968 18 U.S.C. § 924(c)(1) (use of a firearm to commit a felony). For the reasons that follow, we hold that separate judgments of conviction for bank robbery and armed bank robbery may not be entered when those convictions arise out of a single criminal transaction. We also hold that the government may not prosecute a defendant under 18 U.S.C. § 924(c)(1) for use of a firearm to commit a felony when the underlying felony, armed bank robbery, is prosecutable under 18 U.S.C. § 2113(d).
The facts leading to the convictions here at issue are unimportant. Suffice it to say that Grimes was involved in two separate bank robberies in 1976. He was apprehended and charged with two counts of violating 18 U.S.C. § 2113(a) (bank robbery), two counts of violating 18 U.S.C. § 2113(d) (armed bank robbery), and two counts of violating 18 U.S.C. § 924(c)(1) (use of a firearm to commit a felony). Trial was held in the Southern District, and the jury returned verdicts of guilty on all six counts. Grimes was given no sentence on the bank robbery counts, but he received sentences of twelve years' imprisonment on each armed bank robbery count and five years' imprisonment on each firearms count, all terms to run concurrently. Grimes retained an attorney for purposes of taking an appeal. His lawyer filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1966), and this Court dismissed the appeal, United States v. Grimes, 556 F.2d 561 (2d Cir. 1977).
Subsequently, Grimes filed a Pro se petition under 28 U.S.C. § 2255. This petition was denied without a hearing. 444 F. Supp. 78 (S.D.N.Y.1977). With the assistance of the Federal Defender Services Unit of the Legal Aid Society, Grimes appealed from this denial, arguing that he had been denied effective assistance of counsel at trial, that simultaneous convictions under § 2113(a) and § 2113(d) were unlawful, and that multiple sentences for simultaneous convictions under § 2113(d) and § 924(c)(1) also were unlawful. The panel that heard the appeal found no merit in Grimes' ineffective assistance of trial counsel argument. Because no sentence had been imposed on the § 2113(a) convictions, this Court was without jurisdiction to consider Grimes' complaint that these convictions had been unlawfully entered. See Berman v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937) ("Final judgment in a criminal case means sentence. The sentence is the judgment."). See also Pollard v. United States, 352 U.S. 354, 360 n.4, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957). Accordingly, the panel dismissed this portion of the appeal and remanded for resentencing. The remand included among its purposes reconsideration of the sentences imposed on the § 924(c)(1) counts, directing the district court's attention to the Supreme Court decision of Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978), a decision filed after the district court's denial of Grimes' petition but before the appeal was heard. 582 F.2d 1271 (2d Cir. 1978) (unpublished memorandum).
On remand, the district court imposed a "single general sentence" of twelve years' imprisonment on each pair of § 2113(a) and § 2113(d) convictions, the sentences to run concurrently. The district court suspended imposition of sentence on the § 924(c)(1) counts without imposing a term of probation. Grimes has again appealed, raising essentially the same issues he raised before the earlier panel.
We note at the outset that questions exist as to whether Grimes is entitled to invoke the protections embodied in § 2255 and whether the claims he makes are claims that are cognizable under the statute.
The statute itself provides in part:
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.
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.
The threshold problem here is that even if Grimes prevails in his challenges to the district court's interpretation and application of § 2113(a), § 2113(d) and § 924(c) he will not be released from custody he is not, technically speaking, "claiming the right to be released." He is challenging not so much his sentences as he is the underlying convictions. Thus, at most, his convictions under § 2113(a) and § 924(c)(1) would be vacated and, possibly, his case would be remanded for consideration of resentencing. Grimes himself acknowledges as much.
It is our judgment that this should not act as a bar to the invocation of § 2255. In Walker v. Wainwright, 390 U.S. 335, 88 S. Ct. 962, 19 L. Ed. 2d 1215 (1968), the Supreme Court unanimously held that a prisoner was entitled to challenge a sentence he was currently serving even though a separate sentence was scheduled to take effect at its termination. In Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), the Court, again unanimously, held that a prisoner serving consecutive sentences was entitled to challenge the sentence scheduled to take effect in the future, this despite the fact that if he was successful in his challenge he would still have to finish serving his current sentence. The Court explained that the habeas corpus statute should be construed liberally because it is a remedial statute, and concluded that federal courts had the power "to fashion appropriate relief other than immediate release." 391 U.S. at 66, 88 S. Ct. at 1556. See also Andrews v. United States, 373 U.S. 334, 339, 83 S. Ct. 1236, 1239, 10 L. Ed. 2d 383 (1963) (s 2255 "can also be utilized to provide a more flexible remedy" than release from custody). Of particular relevance to the appeal now before us is the fact that Peyton v. Rowe expressly overruled the earlier case of McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238 (1934), which had held:
Habeas corpus may not be used to modify or revise the judgment of conviction. . . . Even when void, its operation may be stayed by Habeas corpus only through the exercise of the authority of the court to remove the prisoner from custody. That authority cannot be exercised where the custody is lawful.
293 U.S. at 139, 55 S. Ct. at 27. In yet a third unanimous decision, Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), the Court, expressly overruling Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909, 4 L. Ed. 2d 963 (1960), held that a prisoner was entitled to challenge the validity of his conviction via habeas corpus notwithstanding the fact that he had been unconditionally released while his petition was pending. See also Pollard v. United States, supra, 352 U.S. at 358, 77 S. Ct. 481; Cf. United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954) (district court may issue writ of error coram nobis to vacate judgment of conviction ...