Morrison v. United States, 29033 Summary Calendar.
| Decision Date | 17 November 1970 |
| Docket Number | No. 29033 Summary Calendar.,29033 Summary Calendar. |
| Citation | 432 F.2d 1227 |
| Parties | Marvin McKinley MORRISON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marvin McKinley Morrison, pro se.
Eldon B. Mahon, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for respondent-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied November 17, 1970.
The District Court denied appellant's § 2255 motion after an evidentiary hearing. We affirm.
Appellant was convicted of bank robbery. The chief government witness was a codefendant, McDonald, who had pleaded guilty and was awaiting sentence. Appellant's main contention is that McDonald's testimony was false and that it materially or conclusively contributed to his conviction.
Since the trial McDonald has undergone a series of changes of position. Some months after trial he signed a statement that his testimony had been false. Then he repudiated the recantation. Next he disaffirmed the repudiation. At the evidentiary hearing on the motion to vacate he testified to many respects in which he said his trial testimony was false.
The District Judge conducted a massive evidentiary hearing and filed a lengthy and comprehensive opinion. He found that McDonald's testimony at the trial was true and that the recantation was produced by duress from appellant. The credibility choices and findings of fact made by the District Court are not clearly erroneous. They are supported by ample and substantial evidence.
There is no merit to the claim that appellant was improperly denied process to secure material witnesses for the evidentiary hearing. The court had appointed counsel for him, and no contention is made to us that counsel was ineffective. No subpoenas were sought for the witnesses of whose absence appellant complains.1
United States v. Onan, 190 F.2d 1, 6-7 (8th Cir.), cert. denied, 342 U.S. 869, 72 S.Ct. 112, 96 L.Ed. 654 (1951). The requirement is founded on the assumption that counsel will not execute a certificate in reckless disregard of the truth. Mitchell v. United States, 126 F.2d 550, 552 (10th Cir.1942). It protects against an obviously untruthful affidavit, Boyance v. United States, 275 F.Supp. 772, 775 (E.D.Pa.1967), or an unjustified attempt by a party to disqualify a judge. Freed v. Inland Empire Insurance Co., 174 F.Supp. 458, 464 (D.Utah 1959).
Appellant commenced his § 2255 case pro se and in his first document made the claim of bias and prejudice and asked that counsel be appointed for him. Counsel was appointed,2 and filed supplemental pleadings but did not file a certificate that the motion to disqualify was in good faith. We need not decide whether the affidavit would have been sufficient if filed by a petitioner proceeding throughout without counsel.3 On June 30, when this matter was decided by Judge Brewster, appellant was, and since June 12 had been, represented by counsel, who had not filed the certificate of good faith. Thus, the affidavit was insufficient and, although Judge Brewster based his denial of the motion on other grounds, which we do not reach, his denial was correct.
There is no merit to the contention that the District Judge, who as sentencing judge had seen appellant's presentence report, was barred as a matter of law from acting on the motion to vacate because possessed of information concerning the appellant not formally introduced into evidence. For sound reasons the sentencing judge is allowed to have and to employ that data in the first instance. His knowledge does not bar him from acting on a § 2255 motion.
Other contentions made by appellant do not justify discussion. We have considered all of them, and the decision of the District Court is affirmed.
The ...
To continue reading
Request your trial
-
Lindsey v. City of Beaufort
..."to aid in the administration of justice, and to uphold the dignity of the court and respect its authority." Morrison v. United States, 432 F.2d 1227, 1229 (5th Cir.1970), cert. denied, 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227 (1971) (citing, United States v. Onan, 190 F.2d 1, 6-7 (8th Ci......
-
Danielson v. Winnfield Funeral Home of Jefferson, Civ. A. No. 80-815.
...United States v. Partin, E.D.La.1970, 312 F.Supp. 1355, 1360; Morrison v. United States, N.D.Tex.1969, 321 F.Supp. 286, 288, aff'd 5 Cir. 432 F.2d 1227, cert. denied, 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 2 28 U.S.C. § 144 reads: Whenever a party to any proceeding in a district court makes......
-
U.S. v. De La Fuente
...constitute sufficient compliance with 28 U.S.C. § 144. See, e. g., Galella v. Onassis, 487 F.2d 986 (2 Cir. 1973); Morrison v. United States, 432 F.2d 1227 (5 Cir. 1970), cert. denied, 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227 However, even if the question had been properly raised below an......
-
Heimbecker v. 555 Associates, CIVIL ACTION NO. 01-6140 (E.D. Pa. 3/26/2003)
...against obviously untruthful affidavits and unjustified attempts by a party to disqualify a judge. See, e.g., Morrison v. U.S., 432 F.2d 1227, 1229 (5th Cir. 1970), cert. denied, 401 U.S. 945 (1971). For this reason, the absence of a certificate of counsel is a sufficient basis upon which a......