453 F.2d 873 (5th Cir. 1972), 30170, Cline v. United States

Docket Nº:30170.
Citation:453 F.2d 873
Party Name:Wallace Dean CLINE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:January 10, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 873

453 F.2d 873 (5th Cir. 1972)

Wallace Dean CLINE, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 30170.

United States Court of Appeals, Fifth Circuit.

January 10, 1972

Eldon L. Youngblood, Charles R. Haworth, Dallas, Tex., for petitioner-appellant.

James F. Parker, Jr., Asst. U. S. Atty., Beaumont, Tex., Roby Hadden, U. S. Atty., Tyler, Tex., for respondent-appellee.

Before AINSWORTH, INGRAHAM and RONEY, Circuit Judges.

INGRAHAM, Circuit Judge:

Appellant, following the advice of this court in his previous appeal, 1 filed a petition for writ in the nature of coram nobis in the United States District Court for the Eastern District of Texas seeking to set aside a 1944 conviction of a Dyer Act, 18 U.S.C.A. § 2312, offense.

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Sentence imposed under this conviction has been fully executed.

As was indicated in United States v. Morgan, supra, a writ of error coram nobis is an available remedy to correct fundamental errors in a criminal case, even though the sentence imposed has been served. Rodgers v. United States, 451 F.2d 562 (5th Cir., 1971); Taylor v. Beto, 433 F.2d 979 (5th Cir., 1970); Lujan v. United States, 424 F.2d 1053 (5th Cir., 1970). The issue raised by appellant's petition was whether the 1944 conviction was invalid, and whether it had been used to enhance the sentences which Cline is presently serving.

The district court rejected appellant's petition without conducting an evidentiary hearing, stating:

"But we think that before a petitioner may avail himself of coram nobis relief he must be able to show some present or prospective adverse effect from an unconstitutional conviction. The Supreme Court said in Morgan, supra:

'Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.' 346 U.S. at 511, 74 S.Ct. [247] at 252.

On the basis of the facts alleged in this petition, it is clear that the erasure of this Dyer Act conviction of twenty-five years ago would hardly afford Petitioner any relief from the operation of the California enhancement statute. Neither would it in any way appreciably improve his prospects of parole or restoration of civil rights. Accordingly, we are of opinion that there do not exist in...

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