Fuentes v. United States, 71-2552 Summary Calendar.

Decision Date17 March 1972
Docket NumberNo. 71-2552 Summary Calendar.,71-2552 Summary Calendar.
Citation455 F.2d 910
PartiesAlbert FUENTES, Jr., and Edward J. Montez, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Albert Fuentes, Jr., pro se.

Edward J. Montez, pro se.

Seagal V. Wheatley, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for respondent-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

This appeal is taken from an order of the district court denying motions to vacate judgments and sentences filed pursuant to 28 U.S.C.A. § 2255. We reverse and remand for further proceedings.

Appellants, Albert Fuentes, Jr. and Edward J. Montez, were tried and convicted of conspiracy to bribe and bribery, in violation of 18 U.S.C.A. §§ 201(c) and 371, and sentenced to five years imprisonment. Their convictions were affirmed by the Fifth Circuit on direct appeal, United States v. Fuentes, 5 Cir. 1970, 432 F.2d 405, and the Supreme Court subsequently denied certiorari, 1971, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 822. The appellants thereafter sought post-conviction relief in the court below, alleging (1) that the prosecuting attorney's jury argument was highly prejudicial, and (2) that during the course of their trial the government intentionally withheld evidence favorable to the appellants. The district court concluded, solely upon the basis of the pleadings and the briefs, that the appellants' claims were without merit. We agree with this assessment concerning the appellants' first claim. However, absent findings of fact and conclusions of law, we are unable to review the disposition of appellants' second claim.

The appellants' contention regarding the prosecuting attorney's jury argument was raised by them and acted upon by this court during the course of their direct appeal. Therefore this contention is deemed frivolous. See Smith v. United States, 5 Cir. 1970, 420 F.2d 690. However, the second contention of the appellants was raised for the first time below, and the district court failed to follow the proper procedure in disposing of it. Section 2255 specifically requires a district judge to make findings of fact and conclusions of law with respect to a Section 2255 motion unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, . . ." 28 U.S.C.A. § 2255. The trial judge did not determine that the files and...

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6 cases
  • Buckelew v. U.S.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 19 Junio 1978
    ...559 F.2d 963 (5th Cir. 1977), petition for cert. denied, --- U.S. ----, 98 S.Ct. 1876, 55 L.Ed.2d --- (1978); Fuentes v. United States, 455 F.2d 910, 911 (5th Cir. 1972); Smith v. United States, 420 F.2d 690 (5th Cir. 1970). We likewise affirm the disposition of the claims regarding the tri......
  • Bryan v. United States, 72-2127. Summary Calendar.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 31 Agosto 1973
    ...See Montgomery v. United States, 5 Cir. 1972, 469 F.2d 148; Brown v. United States, 5 Cir. 1972, 462 F.2d 681; Fuentes v. United States, 5 Cir. 1972, 455 F.2d 910. We do not see how an examination of the files and records can possibly show that no off-the-record bargain had been entered int......
  • Griffith v. U.S., 75-4077
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 19 Julio 1976
    ...that presented in his direct appeal that we cannot dismiss it as an issue already disposed of through a prior appeal. Fuentes v. United States, 455 F.2d 910 (5th Cir. 1972). To prevail on a Giglio claim, the petitioner must prove (1) that the statement was actually false, Corpus v. Beto, 46......
  • Kastenbaum v. U.S., 77-2766
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 17 Enero 1979
    ...by the petitioner in his direct appeal. Kaufman v. United States, 1968, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227; Fuentes v. United States, 5 Cir. 1972, 455 F.2d 910. We agree with the district court that the Kaufman doctrine precludes Kastenbaum from arguing that his conduct did not com......
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