Davis v. United States, 71-2547 Summary Calendar.

Citation455 F.2d 919
Decision Date25 February 1972
Docket NumberNo. 71-2547 Summary Calendar.,71-2547 Summary Calendar.
PartiesClifford H. DAVIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Clifford H. Davis, pro se.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Asst. U. S. Atty., Oxford, Miss., for respondent-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

PER CURIAM:

Clifford H. Davis appeals from the denial by the District Court of his motion to vacate sentence pursuant to 28 U.S.C. § 2255. We affirm.

Appellant was indicted by a federal grand jury sitting in Greenville, Mississippi, on January 30, 1968, for bank robbery in violation of 18 U.S.C. § 2113(a). He was tried by a jury, convicted and sentenced to serve fourteen years. We affirmed on direct appeal. See Davis v. United States, 5 Cir., 1969, 409 F.2d 1095.

Appellant, a Negro, alleges for the first time in his 2255 petition that his sentence should be set aside on grounds of systematic exclusion of Negroes from the grand jury which indicted him. The District Court correctly found that appellant's failure to raise the objection timely by pretrial motion, pursuant to Rule 12(b) (2), Fed.R.Crim.P., constituted a waiver of that objection, and in the absence of any extraordinary or prejudicial circumstances, appellant was not entitled to the relief sought. See Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 83 S. Ct. 448, 9 L.Ed.2d 357 (1963); Pinkney v. United States, 5 Cir., 1967, 380 F.2d 882; Jackson v. United States, 5 Cir., 1968, 394 F.2d 114; Brooks v. United States, 5 Cir., 1969, 416 F.2d 1044; Bustillo v. United States, 5 Cir., 1970, 421 F.2d 131; Throgmartin v. United States, 5 Cir., 1970, 424 F.2d 630.

There is no merit to appellant's additional contention that his constitutional rights were infringed because an assistant to his counsel, a senior law school student, was not allowed to confer with him in prison.

Affirmed.

ON PETITION FOR REHEARING

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.1

1 We have considered appellant's contention on petition for rehearing that an original file was missing and it was "therefore utterly impossible for the Court to obtain or read a mystical file in its entirely (sic) between January 1971, and May 1971, when they were lost in its entirety in June 1968." He maintains, therefore, that the District Judge was in error in rejecting his contention that an oral motion was made by counsel on his behalf challenging the array of the Grand Jury ten minutes prior to jury trial. We have difficulty understanding appellant's contention. Nevertheless, we have carefully examined all of the files, record and supplementary records, as well as the transcript of testimony in this matter. There is no mention therein of a motion, oral or written, challenging the Grand Jury array. The contention is raised for the first time, in this Section 2255 proceeding. The files show that subsequent to the denial by the District Court of the Section 2255 petition and subsequent to Davis' appeal therefrom, the United States Attorney was granted leave to modify the record on appeal by filing true copies of original motions by Davis for a new trial and to quash indictment because of alleged illegality of arrest, which original motions were missing from the file. Neither motion refers in any way to the composition of the Grand Jury. These instruments were before the District Judge and considered by him in denying the writ as shown by the following excerpt from his memorandum opinion:

"Petitioner claims that an objection to the composition of the grand jury was made by oral motion of petitioner's attorney and denied by the court before trial in open court on May...

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4 cases
  • Davis v. United States 8212 6481
    • United States
    • U.S. Supreme Court
    • April 17, 1973
  • Cruz v. Beto
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 5, 1979
    ...This power may include in appropriate cases the banning of disruptive attorneys and the classification of prisoners. Davis v. United States, 455 F.2d 919 (5th Cir. 1972), Aff'd,411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Elie v. Henderson, 340 F.Supp. 958 (E.D.La.1972). However, not......
  • Lindsay v. Mitchell, 71-3213 Summary Calendar.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 25, 1972
    ... ... Melvin LINDSAY, Petitioner-Appellant, ... John N. MITCHELL, United States Attorney General, et al., Respondents-Appellees ... No. 71-3213 ... ...
  • Wells v. Wainwright
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 4, 1973
    ...on Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), and this circuit's decisions in Davis v. United States, 455 F.2d 919 (1972), aff'd, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and its federal procedural predecessors, the court ruled that peti......

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