Aeby v. United States
| Decision Date | 25 March 1969 |
| Docket Number | No. 26363.,26363. |
| Citation | 409 F.2d 1 |
| Parties | Aubrey AEBY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas M. Dawson, Leavenworth, Kan., for appellant.
Melvin M. Diggs, U. S. Atty., B. H. Timmins, Jr., Asst. U. S. Atty., Dallas, Tex., for appellee.
Before TUTTLE and GEWIN, Circuit Judges, and PITTMAN, District Judge.
The appellant is serving a fifteen-year sentence in a federal penitentiary for narcotics violations. His motion to vacate the judgment of conviction under section 2255 of the Judicial Code was denied by the United States District Court for the Northern District of Texas. In his motion, the appellant alleged that "prejudicial remarks were made before the jury by both the judge and prosecutor in the closing argument before the jury." Additionally, he alleged that he had ordered and paid for a transcript of the trial proceedings but that he had been unable to obtain a transcript of the closing argument to the jury because of collusive suppression of that part of the record. The district court denied the appellant's motion on the ground that it "raises no new matters which have not heretofore been considered by this Court and the Court of Appeals during the original trial, appeal and 2255 motions filed by this petitioner." We do not agree with the ground adopted by the district court for denying relief, but we affirm the judgment on another ground.
The Congress has provided that a court reporter must record verbatim all proceedings in criminal cases and that the original shorthand notes or mechanical recordings must be preserved in the public records of the court "for not less than ten years." 28 U.S.C. § 753(b) (1964). Of course, as a matter of policy, it is wise to preserve the original records for as long as the period of detention. The appellant has submitted affidavits executed by the clerk and court reporters of the district court, from which it appears that no record of the closing arguments in the original trial is in existence. This court has held, however, that a failure to comply with the statute is not error per se entitling a prisoner to relief. E. g., Burns v. United States, 323 F.2d 269, 270 (5th Cir. 1963), cert. denied 376 U.S. 907, 84 S.Ct. 660, 11 L.Ed.2d 606 (1964).
The movant under section 2255 must allege specific facts which, if true, would constitute reversible error; otherwise, the district court must deny the motion to vacate. Smith v. United...
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U.S. v. Bond
...of a claim of actual bias, in violation of Sec. 455(b)(1), that may be appropriate under 28 U.S.C. Sec. 2255. See Aeby v. United States, 409 F.2d 1 (5th Cir.1969) (employing this procedure); United States v. Brown, 539 F.2d 467 (5th Cir.1976) (actual bias may be a ground for collateral Samm......
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State v. Jensen, 892
...to record the opening and closing arguments in itself is not sufficient to afford Jensen post-conviction relief. See Aeby v. United States, 409 F.2d 1, 2 (5th Cir.1969); United States v. Bebik, 333 F.2d 736, 738 (4th Cir.1964); Brown v. United States, 314 F.2d 293, 295 (9th Jensen argues th......
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DeLuca v. U.S., 4:01CV00164-SNL.
...which, if true, would constitute reversible error; otherwise, the district court must deny the motion to vacate." Aeby v. United States, 409 F.2d 1, 2 (5th Cir.1969) (allegations of the failure to comply with the Reporter's Act combined with mere conclusions as to other errors held insuffic......
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Marsh v. United States, CIV-74-526-D.
...summarily. Hilliard v. United States, 345 F.2d 252 (CA10 1965); Martinez v. United States, 344 F.2d 325 (CA10 1965). In Aeby v. United States, 409 F.2d 1 (CA5 1969) the motion to vacate pursuant to § 2255 was dismissed where the petitioner had combined an allegation of the failure to comply......