United States v. Gernie
| Decision Date | 16 February 1961 |
| Docket Number | No. 201,Docket 26577.,201 |
| Parties | UNITED STATES of America, Appellee, v. Joseph GERNIE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Bella V. Dodd, New York City (Dodd, Cardiello & Blair, New York City, on the brief), for defendant-appellant.
Gerald E. Paley, Asst. U. S. Atty., Southern Dist. of New York, New York City (S. Hazard Gillespie, Jr., U. S. Atty. for the Southern Dist. of New York, David R. Hyde, Asst. U. S. Atty., on the brief), for appellee.
Before CLARK, MAGRUDER and MOORE, Circuit Judges.
Appellant appeals from the denial of his motion made pursuant to 28 U.S.C.A. § 2255 to set aside the judgment of conviction upon the ground that there was such a denial of constitutional rights as to constitute a denial of a fair trial. Appellant claims that a hearing should have been granted because there were material and substantial issues of fact. The trial court concluded that a hearing was not required because an inspection of the court records disclosed that appellant's basic rights received full protection. This conclusion is amply supported by the record.
Appellant was entitled to a hearing "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" (28 U.S.C.A. § 2255). However, a Section 2255 proceeding cannot be used to seek reversal because of alleged trial errors, particularly where, as here, these alleged errors were, or could have been, raised on the appeal from the conviction.
The facts upon which the conviction was based are fully set forth in this court's opinion on the appeal (United States v. Gernie, 2 Cir., 1958, 252 F.2d 664, certiorari denied 1958, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073). That opinion also specifically considered and decided adversely to appellant the claim of deprivation of due process because of the refusal of the witness Harrell to answer certain cross-examination questions upon the ground of his Fifth Amendment privilege (252 F.2d 664, at pages 669-670).
Appellant also asserts that reversible prejudice resulted from the joint trial with Ogull. The same arguments can be advanced in every multiple defendant case. Usually defendants jointly indicted are tried together, although the trial court has broad discretion in the matter. This point could have been raised on the original appeal. Nor is there any evidence that the trial court was...
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United States v. Gernie
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