Gallarelli v. United States, No. 5365.

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: PER CURIAM
• Citation: 260 F.2d 259
• Decision Date: 29 October 1958
• Docket Number: No. 5365.
• Parties: Samuel J. GALLARELLI, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

260 F.2d 259 (1958)

Samuel J. GALLARELLI, Petitioner, Appellant,
v.
UNITED STATES of America, Respondent, Appellee.

No. 5365.

United States Court of Appeals First Circuit.

October 29, 1958.

Samuel J. Gallarelli on brief pro se.

Anthony Julian, U. S. Atty., and William J. Koen and Charles F. Barrett, Asst. U. S. Attys., Boston, Mass., on brief for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

PER CURIAM.

This appeal seems to be a case of grasping at straws.

Gallarelli, along with other persons, was tried by a jury upon an indictment charging conspiracy to use the mails to defraud, contrary to 18 U.S.C. § 371, and upon certain indictments charging the substantive offense of using the mails to defraud contrary to 18 U.S.C. § 1341. Pursuant to jury verdicts of guilty, the trial judge entered a judgment of conviction, imposing penitentiary sentences. Gallarelli appealed to this court from said judgment of conviction, being then represented, as he was at the trial, by counsel of his own choice, Francis Juggins, Esq., a seasoned attorney with extensive experience in criminal litigation. In Gallarelli v. United States, 1 Cir., 248 F.2d 539, we affirmed the judgment of conviction on October 25, 1957.

Under Rule 37(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., supplemented by paragraph 2 of Rule 22 of the Revised Rules of the Supreme Court (346 U.S. 970), 28 U.S.C.A., Gallarelli had thirty days from October 25, 1957, within which to seek a further review by the Supreme Court of the United States

260 F.2d 260

of the judgment of conviction, subject, however, to the proviso that a justice of the Supreme Court "for good cause shown, may extend the time for applying for a writ of certiorari in such cases for a period not exceeding thirty days." It is asserted by appellant that on November 25, 1957, he obtained from an associate justice of the Supreme Court an extension of time within which to file a petition for a writ of certiorari up to and including December 25, 1957; that on December 16, 1957, he filed an application for a further extension of time within which to perfect a writ of certiorari; that on December 29, 1957, he was notified by the Clerk of the United States Supreme Court "that no further extension may be had"; and that on January 8, 1958, all papers, motions and docket fee were returned to him by the Clerk of the United States Supreme Court with the notification "that he was out of time and had no motions before the Court."

Thereafter Gallarelli, being then in a federal prison serving sentence, started all over again by filing a petition in the United States District Court for the District of Massachusetts under 28 U.S.C. § 2255 seeking to have the court vacate and set aside the judgment of conviction. This time he acted "pro se"; and as might be expected he has some harsh things to say about the competence of his attorney at the previous proceeding — a type of attack which usually finds little favor with the courts. See Dario Sanchez v. United States, 1 Cir., 1958, 256 F.2d 73, 75. The district court on March 19, 1958, denied the petition to vacate, in a memorandum and order in which it discussed the various...