United States v. Brown
Decision Date | 15 August 1969 |
Docket Number | No. 23156.,23156. |
Citation | 413 F.2d 878 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Darrell James BROWN, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Darrell J. Brown, pro se.
Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., Howard B. Frank, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG and DUNIWAY, Circuit Judges.
Appellant in propria persona takes this appeal from a district court decision denying relief in a collateral proceeding, designated as a "Motion to Vacate Sentence or for a Writ of Coram Nobis." Appellant has mislabeled his petition. He is not entitled to relief under Federal Rule of Criminal Procedure 35 because his sentence is not itself illegal. Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Coram Nobis is not available, since he is still in custody. Cf. Fed.R.Civ.P. 60(b). Hence, we treat the petition filed below as a motion under 28 U.S.C. § 2255. It was denied in the district court, and we affirm.
We quote from the order of the district court judge (Judge Ferguson):
Our own examination of the transcript of the proceedings had before the sentencing judge shows that most of appellant's contentions are completely frivolous.
After the filing of appellant's opening brief, the Government's brief, and appellant's reply, appellant sought from this court, and received, permission to file a supplemental pleading. We have considered the cases cited therein, and find nothing therein to cause us to come to any conclusion other than to affirm the sentence, based as it was upon a clearly uncoerced plea of guilty, made with a full understanding on appellant's part of the consequences of such plea.
Appellant's reliance upon McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), relating to compliance with Federal Rule of Criminal Procedure 11, is misplaced, for it was held not to be retroactive in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969).
We put aside the question of whether or not a person's life can be put into jeopardy by the use of a dangerous weapon, to wit, a .32 revolver, whether loaded or unloaded. Many a gun has been used as a dangerous weapon without its being fired.
Appellant raises the question as to whether or not the gun used in the holdup could be fired; and if not, had he placed the Postmaster's life in jeopardy.
This point was raised in mitigation of punishment prior to sentence. The trial judge immediately invited the appellant, with his codefendants, to consider the possibility of pleading guilty * * *"(C.T. 39.) Two of the codefendants asked for further delay, and obtained it, but appellant asked for, and received an immediate sentence. cf. Wagner v. United States, 264 F.2d 524 (9th Cir. 1959); LaClair v. United States, 241 F. Supp. 819, 828 (N.D.Ind.1965), and cases cited.
Smith v. United States, 309 F.2d 165 (9th Cir. 1962), is not similar on its facts. There the petitioner was unrepresented by counsel at his trial, and misadvised by Government counsel. Compare, Alexander v. United States, 290 F. 2d 252 (5th Cir. 1961).
Affirmed.
Most of Brown's contentions are clearly without merit, as my brother Barnes' opinion demonstrates. But there is one as to which Brown should be permitted to amend, and, if he can allege sufficient facts, to have a hearing. That is his claim that he did not put the life of the person robbed in jeopardy by the use of a dangerous weapon. Unless he did that, he is not guilty of the aggravated offense of which he was convicted, and he has already served six years more than the ten-year maximum prescribed for the lesser offense of which he is admittedly guilty. Thus this is one of those rare cases in which it appears that the petitioner may not be guilty, rather than that there was some defect in the proceedings that may require a new trial even though he be guilty. When such a claim is advanced, I think that it should not be summarily disposed of, without a hearing, unless the record does indeed "conclusively show that the prisoner is entitled to no relief." (28 U.S.C. § 2255; emphasis added). Here, I do not find the record conclusive.
Brown asserts that he did not have an "intelligent understanding" because:
No facts whatever are stated in support of these allegations. Moreover, the transcript of the sentencing hearing...
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