Fennell v. United States, 7203.
| Decision Date | 28 January 1963 |
| Docket Number | No. 7203.,7203. |
| Citation | 313 F.2d 941 |
| Parties | Calvin FENNELL, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Carl L. Harthun, Denver, Colo., for appellant.
Phillips Breckinridge, Tulsa, Okl. (John M. Imel, Tulsa, Okl., was on brief with him), for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
This is an appeal from the District Court's denial of Calvin Fennell's second motion to vacate the judgment and sentence imposed pursuant to his jury conviction for violations of the federal narcotic laws and for conspiracy. The District Court's denial of this second or successive motion under Section 2255, Title 28 U.S.C., is based upon the premise that the movant "raises no new substantial issues not covered by the prior motion."
After entering upon service of his sentence, the petitioner filed in the District Court a series of papers which the trial court treated as a motion to vacate under Section 2255, and granted leave to proceed in forma pauperis. In substance, the writings complained of his conviction as being obtained by the use of fraud and perjury on behalf of the prosecutor and government agent; improper joinder of offenses and co-defendants; arrest on one charge and indictment and trial on the others; and insufficiency of the evidence to sustain the conviction. Upon a full hearing, in which the petitioner appeared in person and by appointed counsel, and in which he testified in his own behalf, the trial court denied the petition, based upon findings of fact negating all of the allegations in his complaint.
A petition for rehearing and motion to appeal in forma pauperis was denied on the grounds that it was frivolous and not taken in good faith. On petition to this court, leave was granted to proceed in forma pauperis. The case was docketed and the original record, including the transcript of the proceedings in the trial court, were certified here. Upon consideration of the whole record, we were of the opinion that the trial court's findings and conclusions of law were amply supported by the evidence, and that the petitioner's contentions were frivolous. An order was accordingly entered denying leave to proceed further in forma pauperis and the appeal was dismissed.
This second motion under Section 2255 alleges a ground for relief not specifically presented or decided on the former motion, namely, that while deliberating on the petitioner's guilt or innocence, the jury left the jury room twice to communicate with the...
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United States v. Cueto
...of matters which should have been raised on appeal from the judgment. Porth v. Templar, 453 F.2d 330 (10th Cir.1971); Fennell v. United States, 313 F.2d 941 (10th Cir.1963). Movant's assertion that he was denied the effective assistance of counsel at trial has been found to be without merit......
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Hilliard v. United States
...States, 319 F.2d 345 (9th Cir. 1963); Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Fennell v. United States, 313 F.2d 941 (10th Cir. 1963); cf. United States v. Jones, 194 F.Supp. 421 (D.C. Kan.1961), aff'd 297 F.2d 835 (10th Cir. 1962). See also Juelich v. Un......
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Fennell v. United States, 7870.
...§ 2255 asserting that there was insufficient evidence; a hearing was had and appellant testified. Relief was denied and we affirmed, 313 F.2d 941 (10th Cir.). Thereafter appellant filed a second motion asserting improper communication between the judge and the deliberating jury. The trial c......
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Johnston v. United States, 7647.
...Circuit, May 1964; Emmett v. United States, 262 F.2d 70 (10th Cir.); Gaitan v. United States, 317 F.2d 494 (10th Cir.); Fennell v. United States, 313 F.2d 941 (10th Cir.). There were no factual issues raised by the appellant's motion under § 2255, and the trial court was correct in denying ......