Rosa v. United States

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: JOHN R. BROWN, , and AINSWORTH and GODBOLD, Circuit
• Citation: Rosa v. United States, 397 F.2d 401 (5th Cir. 1968)
• Decision Date: 26 June 1968
• Docket Number: No. 24579.,24579.
• Parties: Ralph P. ROSA, Appellant, v. UNITED STATES of America, Appellee.

397 F.2d 401 (1968)

Ralph P. ROSA, Appellant, v. UNITED STATES of America, Appellee.

No. 24579.

United States Court of Appeals Fifth Circuit.

June 26, 1968.

Bruce R. Jacob, Atlanta, Ga., for appellant.

Michael J. Osman, William A. Daniel, Jr., Asst. U. S. Attys., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before JOHN R. BROWN, Chief Judge, and AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

Ralph P. Rosa, appellant, was convicted by a jury on three counts of an indictment charging violations of 18 U.S. C. § 371 and 26 U.S.C. §§ 4704(a) and 4705(a), relative to the purchase and sale of cocaine hydrochloride, a narcotic drug. He was sentenced on January 26, 1960 to five years' imprisonment on each count to run concurrently. No direct appeal was taken from the judgment and conviction. The present pro se petition is for "a writ of error coram nobis" which was denied by the district court on January 6, 1967, without a response being required or a hearing being held, the court stating that it had examined the records and found no response or hearing necessary because petitioner would be entitled to no relief even if all of his allegations were taken as true.

Rosa has been before us before with previous petitions in connection with this conviction. On August 24, 1960, he filed a pro se pleading entitled "Motion to Vacate Sentence and Dismiss Indictment" in the district court in which he was convicted, and contended that he had been entrapped by Government agents into committing the crime for which he was convicted; therefore, that his conviction and sentence should be vacated and set aside. The district judge who had presided at Rosa's trial denied the motion on September 16, 1960 without requiring a response or holding an evidentiary hearing. Rosa moved to appeal from this ruling in forma pauperis but the district judge certified absence of good faith and denied the request. We denied the petition for leave to appeal in forma pauperis by our order dated January 23, 1961.

On June 15, 1961, Rosa filed a pro se pleading entitled "Petition for a Writ of Mandamus and/or Motion to Show Cause" in which he alleged that his sentence was illegal because, among other things, his counsel did not properly represent him, for, though petitioner had instructed him to prepare and file a notice of appeal, he did not do so. The district judge denied this petition by order of August 10, 1961 without a hearing because the allegations in the petition "present no grounds for relief." We affirmed the ruling by order issued May 8, 1962. See 301 F.2d 630.

On August 2, 1963, Rosa was released on parole but within a month, on September 1, 1963, he was arrested again, this time on another narcotics offense relating to marihuana, in violation of 26 U.S.C. § 4742(a). In October 1963 he was convicted and sentenced in the same court to a term of 10 years, which was not the maximum for a second offender but greater than the minimum for a first offender. See 26 U.S.C. § 7237(a).

Though not represented by counsel in the lower court in connection with the present petition, he is now represented before us by counsel from the Emory University School of Law, Legal Assistance for Inmates Program. In this petition Rosa is attacking the January 26, 1960 sentence on which we are informed by his counsel that 18 months remain to be served and that the remaining portion of this sentence will not commence to run until the expiration of his present 10-year sentence.¹ We are asked to consider the petition either as one seeking coram nobis or Section 2255 relief (28 U.S.C. § 2255).

In a post-argument letter of appellant's counsel to the court, pursuant to our direction at oral argument, appellant's contentions are summarized as follows:

It is the position of appellant that he suffered or is suffering the following disabilities or disadvantages due to the fact that 18 months of the 1960 sentence claimed to be invalid remain to be served at the expiration of his present sentence:

1. The fact that appellant had been previously convicted, in 1960, was taken into account by the trial court in the process of determining the length of his present sentence, and, as a result, Rosa's present sentence is unfair. Rosa's present sentence of 10 years is greater than the minimum penalty which could have been imposed for a first-time or a second-time narcotics or marihuana offender.

2. As a practical matter, it is virtually impossible for appellant to obtain a "minimum custody" classification at any federal prison, due to the fact that 18 months of a previous sentence are scheduled to begin running at the expiration of his present sentence.

3. Because he is unable to obtain a minimum custody classification, he is not entitled to live in certain preferred prison living quarters, such as dormitories, which are available to inmates who are able to obtain such classification.

4. Because he is unable to obtain a minimum custody classification, he is not entitled to work in certain preferred prison jobs and work details which allow prisoners to work outside prison walls.

5. Appellant is denied certain "good-time" or "gain-time" credits which he would be able to accumulate except for the fact that he is denied a minimum custody classification.

6. Due to his classification, appellant is not eligible to participate in the "work-release" program, in which some inmates are allowed to work for pay for employers outside prison walls.

7. Due to his classification, appellant is ineligible to transfer to certain preferred minimum custody institutions in the federal correctional system, such as the "Eglin" institution in Florida.

Rosa avers in the present petition that he was entrapped into committing the 1960 crime by two federal narcotics agents, Eugene Marshall and Charles Sanchez; that Marshall repeatedly, over Rosa's refusals, asked him to find a supplier of narcotics in return for which he would obtain marihuana for Rosa, who used that drug. As a result, Rosa put Agent Sanchez in contact with a supplier, resulting in his arrest and subsequent conviction on the testimony, Rosa contends, principally of Agent Marshall. Petitioner avers that Marshall's testimony was false and that he was entrapped for the sole purpose of creating a conviction for the record so that this federal agent might protect and shield those actually involved in the narcotic traffic in return for bribes paid to him. Marshall was subsequently convicted in 1965 of unfaithfulness to his trust as a federal narcotics agent and sentenced in the same district court to a term of 14½ years, which he is now serving.

In connection with the averment that appellant's retained counsel did not appeal his 1960 conviction as...