Taylor v. United States
| Decision Date | 31 December 1956 |
| Docket Number | No. 14870.,14870. |
| Citation | 238 F.2d 409 |
| Parties | Marion TAYLOR, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Richard Stanley, Marion L. Taylor, in pro. per.
Lloyd H. Burke, U. S. Atty., Richard H. Foster, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before POPE, CHAMBERS and HAMLEY, Circuit Judges.
Taylor was charged with the sale of a narcotic drug in violation of the Harrison Narcotic Act, 26 U.S.C.A. (I.R.C. 1939) §§ 2553 and 2557. He was tried upon his plea of not guilty, found guilty by a jury, and sentenced to a term of five years by judgment of the court below. Subsequently he filed in the same court a motion to vacate his sentence under § 2255, Title 28 U.S.C.A. This motion was denied by the Judge before whom he had originally been tried. His attempt to obtain permission to appeal in forma pauperis was denied after the district court had certified that the appeal was not taken in good faith. Taylor v. United States, 9 Cir., 221 F.2d 228. Thereafter Taylor filed in the same court a second motion to vacate under § 2255 and this appeal now refers to the order denying that second motion.
Taylor has filed in the present proceeding a motion for an order requiring that a stenographic transcript of the trial at which he was originally convicted be furnished at the expense of the United States. § 1915(b), Title 28, provides that in certain cases the expense of furnishing a stenographic transcript may be directed to be paid by the United States. Obviously this refers to a stenographic transcript of the proceedings had at the trial of the case which the court of appeals is presently reviewing. As the order from which this appeal is taken was entered by the trial court solely upon the basis of the allegations contained in the motion and without the hearing of any testimony in support thereof, it is plain that there is no stenographic transcript which would properly be supplied in connection with the review which we are now called upon to perform. The motion to furnish the transcript at the expense of the United States is denied.
Appellee has furnished us with a brief which is devoted solely to the argument that since this is the second petition filed by petitioner under § 2255 we should affirm the denial thereof on the ground that that section provides that "the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." We think that the position taken by appellee is of no aid here. If it be granted that under this paragraph of § 2255 the right to refuse to entertain a second motion was a matter within the sound discretion of the district court,1 yet that discretion was not exercised here for the court did entertain and consider the motion, and after considering the same, denied it. We are therefore required to consider upon this appeal the question whether the motion was properly denied without a hearing.2
Appellant's motion covering 45 closely typewritten pages, is for the most part devoted to a lengthy discussion of matters which are wholly irrelevant to a motion of this kind and which have no material bearing upon any issue properly presented under § 2255. Interspersed with a few allegations of fact are lengthy discussions of various legal principles relating to unreasonable searches and seizures; arrests without warrants; the requirements of legal search warrants; the rule of the McNabb case (McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819), etc. But the motion does not disclose that any evidence obtained by an unlawful search or through an unlawful arrest was used against Taylor at his trial, and there is no allegation that any confession made by him whether before or after arraignment was ever used and hence it is apparent that none of the matters thus so extensively discussed in this long motion can have any bearing upon the questions now before us.
Another large portion of the motion is devoted to an extended argument as to why the testimony given at the appellant's trial was insufficient to warrant his conviction.
The motion, however, contains allegations designed to show that Taylor was in two respects denied his constitutional rights. One claim is that the Government knowingly used perjured testimony to procure his conviction; the other is that he was denied the effective assistance of counsel at his trial.
With respect to the first of these claims the allegations of the motion may be summarized as follows: He alleges that two of the witnesses who testified against him before the jury were a federal agent Perry and a Miss Grey. Miss Grey was a narcotics addict who was being used by agent Perry as an informer and to aid in procuring evidence against Taylor. Agent Perry, it is alleged, was the first witness for the Government. He testified that he drove Miss Grey to an apartment building in order to have her attempt to purchase narcotics from one Stanley who was a co-defendant in the case and who resided in the apartment building. Perry testified, according to the allegations, that Miss Grey entered the building and after five minutes returned to Perry's car informing him that she had talked with Stanley about purchasing heroin but that Stanley had said he had nothing but cocaine for sale. Perry then gave Miss Grey $30 to purchase the cocaine. She left the car and reentered the building; that shortly after she entered the hallway or entrance to the building a man later identified as Taylor came out of the door of the building and this man did not again return to the building in the 20 minutes during which Miss Grey remained therein. Miss Grey, witness No. 2, testified that when she first went into the Stanley apartment, she talked to Stanley about heroin and got the information she could buy cocaine. She then returned to Perry's car, received the $30 to make the purchase and returned to the Stanley apartment and there found Taylor with Stanley and two women. She was there introduced to Taylor and bought the $30 worth of cocaine from Taylor in the apartment; that she remained in the apartment until after Taylor and his lady friend had...
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