Brant v. United States, 14959.

• Decision Date: 25 January 1955
• Docket Number: No. 14959.,14959.
• Citation: 218 F.2d 806
• Parties: Freddie BRANT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F.2d 806 (1955)

Freddie BRANT, Appellant, v. UNITED STATES of America, Appellee.

No. 14959.

United States Court of Appeals, Fifth Circuit.

January 25, 1955.

Freddie Brant, in pro. per.

Richard C. Baldwin, Asst. U. S. Atty., New Orleans, La., George R. Blue, U. S. Atty., New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge.

PER CURIAM.

By his motion to vacate sentence and by this appeal from an order denying the motion, appellant seeks in part the relief he sought and which was denied him by the district judge on November 4, 1952, and by this court on appeal in No. 14571¹ on the docket of this court, to obtain a new trial on the ground of newly discovered evidence. In addition he seeks to set the sentence aside on these grounds: (1) that he was deprived of his constitutional right to counsel by being required to plead to an indictment without the assistance of counsel of his own choosing or appointed by the court; (2) that he did not intelligently waive counsel; (3) that he did not understand the nature and effect of his plea; and (4) that he was ill when required and permitted to plead.

The district judge denied² petitioner's motion, and petitioner, appealing from that order, is here urging upon us, in the face of his and his co-defendant Redmon's written confession and the minute entry of their arraignment and plea of guilty³ showing that each signed a written waiver of counsel and entered a plea of guilty to each count of the indictment after each count had been read, that this was not a case, as found by the district judge, where the files and records conclusively show that the appellant is not entitled to the relief asked.

We cannot agree with this view. On the contrary, we are in no doubt, upon the basis of the record that the district judge was right in not permitting defendant, after he had served his sentence in the state court and was serving, or about to enter upon the service of, his federal sentence, in effect to withdraw his plea of guilty and enter a plea of not guilty merely because, more than four years after defendant had pleaded guilty, he comes in with a motion in which he now denies what he formerly affirmed.

The order was right. It is affirmed.

1 Brant v. U. S., 210 F.2d 470.

2 The order read as follows:

"This matter is before the Court on the prisoner's motion to vacate sentence, motion to produce petitioner in court, motion to be a witness in his own behalf, motion for leave to subpoena witnesses, and motion for speedy trial.

"The motion to vacate sentence and the files and records of the case, conclusively show that the prisoner is entitled to no relief, and said motion is denied.

"The motion to vacate sentence being denied, the remaining motions are, also, denied.

"This prisoner previously filed a motion for leave to withdraw his plea of guilty and enter a plea of not guilty, and a motion for new trial based on newly discovered evidence. Those motions, were, on Nov. 4, 1952, denied by this court for reasons fully set forth by the Court at that time. The prisoner appealed from the rulings on those motions, and the matter is now pending before the Court of Appeals for this Circuit."

3 Arraignment:

"Mr. Schulingkamp: What is your name?

"Defendant Brant: Freddie Brant.

"Mr. Schulingkamp: Are you Don Redmon?

"Defendant Redmon: Yes, sir.

"Mr. Schulingkamp: Are you represented by an attorney today in Court?

"Defendant Redmon:...