Davis v. United States, 28758 Summary Calendar.
| Decision Date | 20 April 1970 |
| Docket Number | No. 28758 Summary Calendar.,28758 Summary Calendar. |
| Citation | 424 F.2d 1061 |
| Parties | David A. DAVIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David A. Davis pro se.
Eldon B. Mahon, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for respondent-appellee.
Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.
This appeal is taken from an order of the district court denying the petition of a Texas state convict to vacate an earlier federal conviction which was used for enhancement of his present state sentence. We affirm1 for the reasons expressed by Judge Brewster in his opinion, reprinted below in full. The contention that appellant was denied the right to appeal was not presented to the district court and will not be considered here.
Affirmed.
Petitioner is presently confined in the Texas Department of Corrections under a life sentence as an habitual criminal, imposed on September 6, 1966. The convictions used for enhancement purposes were a 1949 state conviction and a 1963 federal conviction received in this Court.
In a motion to vacate pursuant to Section 2255, Title 28, U.S.C.A., petitioner seeks to set aside his 1963 conviction, CR. 4-63-7, received for forgery and passing of a United States Treasury check in violation of Title 18, U.S.C.A., Section 495.
The record reveals that two other persons were charged in the indictment with petitioner and that they were convicted by a jury upon pleas of not guilty. Thereafter, petitioner waived a jury and was tried before the Court on his plea of not guilty. He was represented at the trial by attorneys of his own choice. On each of four counts, petitioner was given concurrent sentences of eighteen months, the first ninety days to be served in custody, and the remainder of the sentence to be probated.
The contentions raised by petitioner in his motion to vacate are as follows: (1) that he was arrested only after his two co-defendants had been "held on ice" for several days and forced to sign confessions implicating him in the crime; (2) that since the co-defendants were tried separately from petitioner, he was not given an opportunity to cross-examine them concerning the confessions; (3) that the trial judge should have disqualified himself from petitioner's case since he had heard the evidence at the trial of the co-defendants and was thereby prejudiced against petitioner; and (4) that petitioner is being punished a second time for the 1963 conviction by his sentence as an habitual offender in 1966.
The contention as to double punishment has been repeatedly rejected as untenable. See Price v. Algood, 5 Cir., 369 F.2d 376 (1966), cert. den., 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349 and cases cited therein. As the Supreme Court stated in McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901), "The punishment is for the new crime only, but it is the heavier if he is an habitual criminal" 180 U.S., at p. 312, 21 S.Ct. at p. 390.
Petitioner's contention that he was afforded no opportunity to cross-examine his two co-defendants concerning their confessions raises no substantial federal question as to deprivation of a constitutional right, absent any intimation that the confessions were introduced into evidence or otherwise referred to at petitioner's trial. Cf., Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968).
Similarly, no federal question is presented by petitioner's conclusory allegation that the trial judge should have disqualified himself merely on the basis of knowledge gained from the prior trial. As stated in United States ex rel. Bennett v. Meyers, 3 Cir., 381 F.2d 814 (1967), to doubt the capacity of a trial judge to put aside legally irrelevant matters he has heard would result in "a complete breakdown of the operation of the machinery of justice." See also Walker v. Bishop, 8 Cir., 408 F.2d 1378 (1969); United States v. Inches, D.Ct. Ariz., 253 F.Supp....
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