Kennedy v. United States, 16800.
| Decision Date | 06 November 1957 |
| Docket Number | No. 16800.,16800. |
| Citation | 249 F.2d 257 |
| Parties | Joseph Morris KENNEDY v. UNITED STATES of America. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph Morris Kennedy, in pro. per. and Chester E. Wallace, Atlanta, Ga., for appellant.
William C. Calhoun, U. S. Atty., Augusta, Ga., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.
This is an appeal from an order by the District Court denying without a hearing appellant's petition to vacate judgment and set aside sentence under authority of 28 U.S.C.A. § 2255. When such a petition is filed it is the duty of the trial court to conduct a hearing, "determine the issues and make findings of fact and conclusions of law with respect thereto," unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." (Emphasis added.)
The petition alleges that after only 20 minutes conference with his attorney, employed for him by relatives, and after the attorney had already, before ever seeing him, agreed to enter a plea of guilty, such plea was entered "without full understanding of petitioner." It appears from the record of the trial court that, although the appellant was in court on February 20, 1952, and his counsel stated in open court that he had agreed to enter a plea of guilty, the plea was actually signed by counsel on February 21st, on which day none of the parties were in court. The record discloses no arraignment and no explanation of the serious charges, including a capital offense, to the prisoner and no inquiry of the prisoner himself by the court as to his understanding of the charges against him. The printed form of waiver of arraignment and plea was signed by counsel alone on the date following the appellant's appearance in court.
Subsequently, six days later, the court reconvened in order to permit both parties to present to the jury their evidence bearing on the question whether punishment of death should be fixed under the charge of kidnapping set out in 18 U.S. C.A. § 2113. Again, the record is silent as to any matter that would bear on the understanding of the prisoner as to the full nature of the charges against him. Following this trial the jury found against the death penalty and the trial court set a sentence of forty years for the conviction on the four counts under 18 U.S.C.A. § 2113(a) (b) (d) and (e), the bank robbery statute.
Before a trial court may accept a plea of...
To continue reading
Request your trial
-
Wright v. U.S.
...not required to follow a prescribed formula in determining that a defendant understood the nature of the charge. Kennedy v. United States, 249 F.2d 257, 258 (5th Cir. 1957); see Hulsey v. United States, 369 F.2d 284, 286 (5th Cir. 1966). Before the court accepted his plea, Wright, who had b......
-
Porter v. United States
...942, 943; Brown v. United States, 5 Cir., 1959, 267 F.2d 42; Steinberg v. United States, 5 Cir., 1958, 256 F.2d 143; Kennedy v. United States, 5 Cir., 1957, 249 F.2d 257; Gregori v. United States, 5 Cir., 1957, 243 F.2d 48; Parks v. United States, 5 Cir., 1956, 233 F.2d 321; Motley v. Unite......
-
Moist Cold Refrigerator Co. v. Lou Johnson Co.
... ... No. 15057 ... United States Court of Appeals Ninth Circuit ... October 17, 1957 ... ...
-
Pilkington v. United States
...involved, hearings on such allegations have been ordered. United States v. Davis, 212 F.2d 264 (7th Cir., 1954); Kennedy v. United States, 249 F.2d 257 (5th Cir., 1957), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959); Heideman v. United States, 281 F.2d 805 (8th Cir., 1960)......