United States v. Prince, 71-2387.
| Decision Date | 16 March 1972 |
| Docket Number | No. 71-2387.,71-2387. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gerald Wayne PRINCE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bertrand C. Moser, Houston, Tex. (Court Appointed), for defendant-appellant.
Eldon B. Mahon, U. S. Atty., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., W. Andrew Barr, Cecil Emerson, Asst. U. S. Attys., for plaintiff-appellee.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
Gerald Wayne Prince was convicted of violating 18 U.S.C. § 659 for knowingly possessing 566 cases of stolen spark plugs while they were moving in interstate commerce from Toledo, Ohio to Dallas, Texas. On this direct appeal he contends that his conviction should be reversed because of the ineffective assistance of counsel. We affirm.
Our decision in United States v. Knight, 451 F.2d 275 (5th Cir. 1971) furnishes a prelude to this case. That decision sets forth the background facts and the several contentions of the appellants, Bobby Ray Knight and Bobby Gene Grubbs, who were jointly indicted with Prince. Prince was tried separately and subsequently to the trials of Knight and Grubbs. When the case of Prince came on for trial, he and his counsel stated that they wished to incorporate by reference and to stipulate that the evidence presented to the court in the earlier trial would be submitted to the court as the evidence in the non-jury trial of Prince. Both Prince and his counsel assured the court that they understood and approved the stipulation. Prince was found guilty and sentenced to five years imprisonment.
Prince now contends that the record before us clearly demonstrates that his counsel did not render effective assistance and therefore that the judgment of conviction should be reversed. We disagree with this contention and conclude that Prince can not properly raise the issue of the adequacy of counsel for the first time on direct appeal. The record now before us does not present sufficient facts for a proper resolution and determination of that issue. The question was not raised in the district court and no facts bearing upon the subject were presented to the trial court. The government has not had an opportunity to present evidence opposing the claims of Prince that his attorney was ineffective. United States v. Hunter, 417 F.2d 296 (5th Cir. 1969); Ortega-Lira v. United States, 406 F.2d 834 (5th Cir. 1969); Moore v. United States, 359 F.2d 852 (5th Cir. ...
To continue reading
Request your trial
-
U.S. v. Khoury
...582 F.2d 1015, 1016 (5th Cir.1978) (per curiam); United States v. Gray, 464 F.2d 632, 634 n. 1 (8th Cir.1972); United States v. Prince, 456 F.2d 1070, 1070-71 (5th Cir.1972); but cf. United States v. Taylor, 648 F.2d 565, 573 (9th Cir.) (non-jurisdictional rule of forbearance with extraordi......
-
U.S. v. Smith
...not counsel's decisions were strategic or to assess the overall quality of counsel's representation. See, e.g., United States v. Prince, 456 F.2d 1070, 1070-71 (5th Cir. 1972) ("[Defendant] can not properly raise the issue of the adequacy of counsel for the first time on direct appeal. The ......
-
Amin v. State
...proper proceedings available to him, on occasion specifying the availability of a proceeding pursuant to 28 U.S.C. § 2255, e.g., Prince, supra, 456 F.2d at 1071. In such a proceeding, appellant has a full opportunity to prove facts establishing ineffectiveness of counsel, the government has......
-
Thor v. U.S.
...634; United States v. Williams, 5 Cir. 1972, 468 F.2d 819; United States v. Haywood, 5 Cir. 1972, 464 F.2d 756, 763; United States v. Prince, 5 Cir. 1972, 456 F.2d 1070; Atilus v. United States, 5 Cir. 1969, 406 F.2d However, the right to an ex parte hearing pursuant to Rule 17(b) does not ......