Smith v. United States, 15295.
Decision Date | 21 June 1955 |
Docket Number | No. 15295.,15295. |
Citation | 223 F.2d 750 |
Parties | Johnny Ray SMITH, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Johnny Ray Smith, in pro. per., for appellant.
Hartwell Davis, U. S. Atty., Robert E. Varner, Asst. U. S. Atty., Montgomery, Ala., for appellee.
Before HOLMES and RIVES, Circuit Judges, and THOMAS, District Judge.
This appeal is from an order declining to entertain a second motion for relief under Title 28 U.S.C.A. § 2255. It is settled in this Circuit that the disposition of such a second or successive motion for relief depends upon the sound judicial discretion of the district court subject to review on appeal for abuse of discretion. Hallowell v. United States, 5 Cir., 197 F.2d 926, 928; see also Barrett v. Hunter, 10 Cir., 180 F.2d 510, 514, 515, 20 A.L.R.2d 965.
The material averments of the second motion are as follows:
Paragraphs numbered one and two of the second motion, supra, are substantially a restatement of the grounds of the first motion. The first motion had also been denied without a hearing, the court stating: "The Court has made a careful examination of the files and records of the case, and the files and records conclusively show that the prisoner is entitled to no relief."
What the record reveals is briefly as follows: Johnny Ray Smith was arrested at Dothan, Alabama, on November 18, 1949, at 3:30 P.M., charged with having "knowingly transported in interstate commerce from Calhoun County, Florida, to Coffee County, Alabama, Alan W. Spearman, Jr., who was unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted or carried away and held against his will in violation of U.S.C. Title 18, Section 1201." Two codefendants, Richard Dale Nunn and Robert P. Jenks, were arrested on the same day and charged with the same offense. On November 21, 1949, as to each defendant, indictment was waived, jurisdiction or venue waived from the southern to the northern division of the judicial district, representation by counsel waived, and a plea of guilty entered. The record contains a stenographic transcript of the proceedings had in open court on November 21, 1949, in which the court explained to each of the defendants his right to a lawyer, asked each whether any threats had been made against him, explained the right to an indictment before a grand jury and the right to be tried in the southern division rather than in the northern division of the court. The defendants gave replies to the court which would permit it to proceed. In the same proceeding, the court then accepted the pleas of guilty of all three defendants, inquired whether they had been threatened or coerced, and they jointly answered, "No"; inquired their ages, the other two defendants each answered 17 years and Johnny Ray Smith answered 26 years. Smith made a short statement to the court before sentence was imposed as follows:
Each of the other defendants was sentenced for fifteen years.
The record does not and could not negative the movant's detailed allegations of...
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