Accardi v. United States, 464

Citation379 F.2d 312
Decision Date20 June 1967
Docket NumberDocket 31041.,No. 464,464
PartiesSam ACCARDI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Sam Accardi, pro se.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, New York City (Charles P. Sifton and Michael W. Mitchell, Asst. U. S. Attys., on the brief), for appellee.

Before LUMBARD and MOORE, Circuit Judges, and BONSAL,* District Judge.

PER CURIAM:

Appellant was indicted in 1955 on five counts of violating and conspiring to violate federal laws relating to narcotics. After pleading not guilty to all counts and posting a bail bond in the amount of $75,000, appellant failed to appear as required before the District Court and bail was forfeited. Appellant was thereafter located in his native Italy and returned to this country by Presidential Warrant in 1963. Appellant was tried in 1964 on four of the original five counts, found guilty on all four counts and was sentenced to five years on each of three of the four counts, the sentences to run consecutively, and received a suspended sentence on the fourth count. In addition, he was fined a total of $16,000. Appellant's conviction was affirmed by this Court. 2 Cir., 342 F.2d 697; cert. denied, 382 U.S. 954, 86 S.Ct. 426, 15 L.Ed.2d 359 (1965).

In September 1966, appellant filed the instant motion under 28 U.S.C. § 2255 to have his judgment of conviction and sentence set aside on two grounds: (1) that he was unable to understand the charges against him and to assist his counsel in the preparation of a defense as a result of his ignorance of the English language, and (2) that he was incompetent to stand trial as a result of treatments he was receiving during the course of the trial. Judge Cannella, who had also presided over appellant's original trial, denied the motion without a hearing and this appeal followed.

Appellant's affidavit in support of his § 2255 petition consists of six sentences totally devoid of any factual elaboration concerning the basis of his claims. In addition, appellant's unsworn petition consists of conclusory statements which are totally contradicted by the record of the trial. Judge Cannella, who having presided over the original trial was familiar with the facts, acted well within his discretion in denying the petition without a hearing. The "files and records of the case conclusively show" (§ 2255) that appellant is entitled to...

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11 cases
  • Raines v. United States, 12404
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 23, 1970
    ...United States v. Carlino, 400 F.2d 56 (2nd Cir. 1968); Mirra v. United States, 379 F.2d 782 (2nd Cir. 1967); Accardi v. United States, 379 F.2d 312 (2nd Cir. 1967). When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive, but that is not to say t......
  • Dalli v. United States
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 14, 1974
    ...discretion in denying a petition when the supporting affidavit is insufficient on its face to warrant a hearing. See Accardi v. United States, 379 F.2d 312 (2d Cir. 1967); Mirra v. United States, 379 F.2d 782 (2d Cir. 1967). Section 2255 requires a hearing to resolve disputed issues of fact......
  • Newfield v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 19, 1977
    ...Mirra v. United States, 379 F.2d 782 (2d Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967); Accardi v. United States, 379 F.2d 312, 313 (2d Cir. 1967). "The language of (§ 2255) does not strip the district courts of all discretion to exercise their common sense." Machi......
  • Puglisi v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 13, 2009
    ...the petition "had ample opportunity to observe the appellant's demeanor and behavior in the courtroom"), and Accardi v. United States, 379 F.2d 312, 313 (2d Cir.1967) (per curiam) (defendant was not entitled to a hearing where he claimed he was unable to understand the charges against him d......
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