Cauley v. United States, 17302.
| Decision Date | 11 September 1961 |
| Docket Number | No. 17302.,17302. |
| Citation | 294 F.2d 318 |
| Parties | Robert Charles CAULEY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Charles Cauley, in pro. per.
C. E. Luckey, U. S. Atty., and Joseph E. Buley, Asst. U. S. Atty., Portland, Or., for appellee.
Before HAMLIN, MERRILL and KOELSCH, Circuit Judges.
Robert Charles Cauley, appellant herein, was charged in an indictment filed in the United States District Court for the District of Oregon with eleven violations of the narcotic laws of the United States. After a trial by jury he was convicted on all eleven counts, and on September 17, 1957, he was sentenced by the district judge to a term of six years imprisonment on each count, the sentences to run concurrently. No appeal was taken from this conviction.
Over three years later and while in prison, appellant, in propria persona, filed a motion under 28 U.S.C.A. § 2255 to vacate the judgment and sentence theretofore imposed by the district judge. In this motion appellant alleged that (1) he was convicted on hearsay evidence and on the word of a federal officer alone; (2) that he was denied the right to proper counsel; (3) that he was arrested without a warrant, and he and his home were searched without a search warrant; (4) that he was not arrested at the time of the alleged sale of narcotics; and (5) that one of the witnesses to the transaction was not produced by the government. The district judge who tried the case against appellant denied his motion by order dated December 12, 1960, and appellant has appealed to this court. Cauley later filed a motion in the district court asking for a transcript of the testimony in the original criminal case at government expense. The district court did not grant this motion but did make an order on March 1, 1961, in which he refused "to certify that the appeal is not frivolous but presents a substantial question, for the reason that I believe there is no merit in the appeal and that it does not present a substantial question on appeal." A later application by appellant to this court for leave to proceed in forma pauperis was denied "for the reasons expressed by Judge Solomon in his order filed December 12, 1960." Thus there is no record before this court of the proceedings at the trial, none having been presented to this court by appellant.
There are many questions which an appellant may raise upon an appeal from a judgment of conviction which cannot be raised by a motion under § 2255. In Black v. United States, 9 Cir., 1959, 269 F.2d 38, 41, the court said:
"A sentence is not ordinarily subject to collateral attack in a section 2255 proceeding for errors of law which could have been corrected by an appeal."
Concerning appellant's claim that he was denied the right to proper counsel, it was said in Black v. United States at page 42:
An examination of the allegations in appellant's motion on this point shows that there was no contention made by appellant that his attorney's conduct "was so incompetent that it made the trial a farce." In fact, his main contention seems to be that his self-chosen attorney, after an investigation of the case, advised him to enter a plea of guilty. This does not evidence any incompetence on the part of the attorney; in fact, such advice in many cases may be the best advice that counsel can give to a defendant. The district judge in passing upon Cauley's motion on December 12, 1960, said in reference to this contention:
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Houser v. U.S.
...United States, 296 F.2d 853, 856 (8th Cir. 1961), cert. denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962); see Cauley v. United States, 294 F.2d 318 (9th Cir. 1961); Barder v. United States, 197 F.2d 815 (10th Cir.), cert. denied, 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665 (1952). Note:......
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...evidence at trial is an error which should be challenged by taking an appeal from the judgment of conviction. See Cauley v. United States, 294 F.2d 318, 320 (9th Cir. 1961); Barber v. United States, 197 F.2d 815 (10th Cir.) (per curiam), cert. denied, 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665......
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