Smith v. United States, 15336.

• Decision Date: 22 March 1966
• Docket Number: No. 15336.,15336.
• Parties: Clifton E. SMITH, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

358 F.2d 683 (1966)

Clifton E. SMITH, Appellant, v. UNITED STATES of America.

No. 15336.

United States Court of Appeals Third Circuit.

Argued December 2, 1965.

Decided March 22, 1966.

Daniel B. Pierson, V, Philadelphia, Pa., for appellant.

Harry A. Nagle, Asst. U. S. Atty., Lewisburg, Pa. (Bernard J. Brown, U. S. Atty., Scranton, Pa., on the brief), for appellee.

Before HASTIE, GANEY and FREEDMAN, Circuit Judges.

GANEY, Circuit Judge.

This is an appeal from an order of the United States District Court for the Middle District of Pennsylvania, which denied a motion of the appellant made under Section 2255, Title 28 United States Code, to vacate the conviction and sentence he was then serving. On January 28, 1964, the appellant was indicted by the grand jury in the Middle District of Pennsylvania, on a single count indictment which charged him with interstate transportation of a stolen motor vehicle, in violation of Title 18 United States Code, Section 2312.

The appellant was arraigned on February 10, 1964, at which time the court appointed Sebastian D. Natale as his attorney, and a plea of not guilty was entered.

The defendant, represented by counsel, went to trial and on February 18, 1964, he was found guilty. He was sentenced to the custody of the Attorney General for a period of four years, the sentence he is now serving.

On February 24, 1964, the appellant submitted a petition which the court construed as a motion for a new trial since it was submitted within five days after the verdict had been returned, since February 23 was a Sunday. The court, reviewing the record, denied the motion for a new trial, as well as the petition in forma pauperis, since, as it pointed out in an order entered on April 27, 1964, the content of the motion for a new trial was utterly frivolous in nature and the petition in forma pauperis, likewise, was without merit and not taken in good faith and no substantial question was presented. The reason alleged, in what the court treated as a motion for a new trial, was that the Government's witness who testified against him about the stolen car taken from Baltimore, Maryland, to Mechanicsburg, Pennsylvania, in violation of Title 18 United States Code, Section 2312, told a fabrication of lies and that the testimony of other witnesses was perjured, and, additionally, that the court erred in permitting the Government to inquire into appellant's previous record of convictions of felonies after he had taken the witness stand.

Appellant then filed a petition with the District Court which considered it as a motion for vacation of the judgment of conviction under Title 28 United States Code, Section 2255. This motion contained the same contentions as were averred in what the court treated as a motion for a new trial, to wit, that the Government witnesses were not telling the truth and were lying and that the court erred in admitting evidence of his prior convictions.

The court dismissed the petition and entered an order denying the same and this appeal is taken from the denial of that order.

A careful scrutiny of the record shows that the appellant was properly convicted. His sole defense was that the Government witnesses who testified against him were "lying" when, as a matter of fact, it is disclosed that, if there was anyone not telling the truth, it was the appellant. The motion does not disclose what portion of the testimony was false, nor does it allege any facts to show the Government knowingly used false testimony at the trial, which are matters of...