Green v. United States, Misc. Civ. No. 61-42-C.

• Decision Date: 30 January 1962
• Docket Number: Misc. Civ. No. 61-42-C.
• Citation: Green v. United States, 201 F.Supp. 804 (D. Mass. 1962)
• Parties: Theodore GREEN v. UNITED STATES of America.
• Court: U.S. District Court — District of Massachusetts

201 F. Supp. 804

Theodore GREEN v. UNITED STATES of America.

Misc. Civ. No. 61-42-C.

United States District Court D. Massachusetts.

January 30, 1962.

James Vorenberg, Ropes & Gray, Boston, Mass., for Theodore Green.

William J. Koen, Asst. U. S. Atty., Boston, Mass., for the United States.

CAFFREY, District Judge.

Theodore Green, petitioner herein, filed a motion pursuant to 28 U.S.C.A. § 2255, seeking an order "that the sentence in the above-entitled case (United States v. Theodore Green, Cr.No. 52-130) be vacated, on the ground that it was imposed in violation of the laws of the United States by reason the petitioner was not afforded an opportunity to speak in his own behalf before imposition of sentence, as provided in Rule 32(a), Federal Rules of Criminal Procedure 18 U.S.C.A.."

The Government filed a motion to dismiss and the matter came before the Court on the Government's motion to dismiss. James Vorenberg, Esq., as court-appointed counsel for the petitioner, filed a brief and argued the matter orally. At the oral argument counsel for the Government took the position that the motion to vacate sentence should be dismissed on the theory of res judicata by reason of the opinion of the Supreme Court of the United States, handed down last term, in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670.

It has become unnecessary to decide whether or not the Government's contention with respect to the res judicata effect of the action of the Supreme Court in Green v. United States, supra, is correct, because of the opinion handed down on Monday, January 22, 1962, in Hill v. United States, 82 S.Ct. 468; 30 Law Week 4121.

In Hill it was conceded that the defendant had not been offered an opportunity to make a statement, as required by Rule 32(a), Federal Rules of Criminal Procedure. Yet the Supreme Court explicitly ruled that such a defendant could not...