Cardarella v. United States
Decision Date | 11 May 1966 |
Docket Number | No. 15931-2.,15931-2. |
Parties | Anthony CARDARELLA, Petitioner, v. UNITED STATES of America, Plaintiff. |
Court | U.S. District Court — Western District of Missouri |
Anthony Cardarella, petitioner, pro se.
James J. Featherstone, Dept. of Justice, Washington, D. C., for plaintiff.
ORDER OVERRULING PETITIONER'S "MOTION TO VACATE AND SET ASIDE JUDGMENT UNDER TITLE 28, SECTION 2255, U.S.C.A."
On March 22, 1966, the petitioner, who is now confined in the United States Penitentiary at Leavenworth, Kansas, filed a motion under § 2255 Title 28 U.S. C.A. to vacate and set aside the two consecutive five year sentences imposed upon him in United States of America vs. Anthony Cardarella, et al., on May 12, 1961. He alleges as grounds for his motion:
Thereafter the United States filed its Suggestions in Opposition to the motion, and the petitioner filed his Reply thereto. No new matter was alleged in the Reply, except quoted evidence from the record with respect to the matters about which he is now complaining.
We see no advantage in going into the details of the offense for which he was indicted and convicted, as they appear, at length in Ferina v. United States, 8 Cir. 302 F.2d 95; Ferina v. United States, 8 Cir., 340 F.2d 837; Cardarella v. United States, 8 Cir. 351 F.2d 272; Cardarella v. United States, 8 Cir., 351 F.2d 443.
This is the third motion filed by the petitioner attacking the validity of the sentences. The first motion, following the conviction, was filed on June 11, 1964. It was a motion filed under said § 2255 to vacate the judgment on the ground that the petitioner had been prejudiced by the failure of the trial court to sustain a motion for judgment of acquittal as to his co-defendant Anthony J. Biase, who was charged with conspiracy in the fourth count of the indictment along with the other defendants.
It was the petitioner's contention apparently in that case that he was prejudiced by the testimony introduced with respect to Biase's connection with the sale of narcotics in Omaha, which was the basis of an indictment against Biase in the United District Court at Omaha, and which was alleged to have led to the attack upon the informer Sheetz by Cardarella and Ferina. This motion was overruled by the trial court in a Memorandum Opinion dated July 23, 1964, affirmed in Cardarella v. United States, 8 Cir., 351 F.2d 443.
Thereafter on March 3, 1966, petitioner filed another "Motion for correction or reduction of illegal sentence under Rule 35 Federal Rules of Criminal Procedure." It was his contention in this motion that the consecutive sentences imposed upon him were illegal, i. e., that the sentence imposed under the count of the indictment charging conspiracy and under another count of the indictment alleging the substantive offense, placed him in double jeopardy and was void. In a Memorandum Opinion dated March 25, 1965, Judge Hunter overruled that motion.
On March 22, 1966, two days before the court ruled on his motion filed under Rule 35, the petitioner filed the motion now under consideration.
Said § 2255 provides that: "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." However, the courts have been liberal in their construction thereof and permit the filing and consideration by the court of more than one such motion. The section also provides that:
"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."
We believe that the records in this case so conclusively show that the petitioner is not entitled to any relief on the grounds alleged in his motion that a hearing is not necessary.
The first ground upon which he relies, that is, that his counsel was guilty of lack of diligence and acts of negligence which resulted in depriving the petitioner of certain evidence to which he felt he was entitled to have presented; counsel's failure to present to the Court of Appeals the exceptions taken at the close of the trial to the charge of the court, and for failure to present to the Court of Appeals the alleged error of the court in permitting the jurors to separate after the conclusion of the testimony, will be disposed of first.
During the course of the trial the court very carefully charged the jury as to their responsibilities, and that they must not talk to other persons outside of the court room, read any newspapers or get any impressions from them, that they should not listen to any radio or view any television broadcasts during the course of the trial.
There was never at any time any request on the part of the defendants, or either of them, or their counsel, to confine the jurors during the course of the trial.
The record reveals that the testimony and the charge of the court were concluded on Thursday, April 20, 1961, and that after approximately two hours of deliberation, and at 5:30 o'clock p. m. on that day, the jury was excused until 9:30 o'clock a. m. on the following day, and that the court stated to the jury: Upon convening court the following day, counsel for petitioner stated:
Counsel then read into the record, portions of the newspaper article referred to. In response to counsel's request, the Court stated:
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Cardarella v. United States
...trial court determined that these contentions were without merit and denied the motion without a plenary hearing. Cardarella v. United States, 258 F.Supp. 813 (D.C. 1966). The grand jury which subsequently indicted petitioner was conducting a general inquiry into the circumstances surroundi......
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