United States v. Rush, Cr. No. 27648.

• Decision Date: 04 March 1963
• Docket Number: Cr. No. 27648.
• Parties: UNITED STATES of America v. Cyrus Chester RUSH.
• Court: U.S. District Court — Eastern District of Louisiana

215 F. Supp. 882

UNITED STATES of America v. Cyrus Chester RUSH.

Cr. No. 27648.

United States District Court E. D. Louisiana

March 4, 1963.

Francis E. Weller, Asst. U. S. Atty., Peter E. Duffy, Asst. U. S. Atty., New Orleans, La., for the United States.

Louis A. Heyd, Jr., New Orleans, La., for Cyrus C. Rush.

ELLIS, District Judge.

Petitioner was convicted by a jury on August 25, 1960 of violation of Section 4704(a) and 4705(b), Title 26 and Section 174, Title 21 and Section 371, Title 18 of the United States Code, to wit, conspiracy to sell heroin and selling heroin to a party without an order from the Secretary of the Treasury. The record indicates that although the Court ordered counsel appointed for petitioner, he ultimately was represented by counsel of his own choice. Petitioner did not seek a new trial nor did he appeal his conviction. He was sentenced to eleven years in a federal penitentiary on September 7, 1960. On January 17, 1961, petitioner moved to set aside the judgment and the motion was denied by the trial judge the same day.

Petitioner now seeks to be released under 28 U.S.C.A. § 2255. That statute provides that a prisoner in custody from a sentence from a federal court may, at any time, petition to have the sentencing court vacate the sentence on the grounds that sentence was imposed in violation of the Constitution and laws of the United States or that sentence was imposed in excess of the legal maximum or for lack of jurisdiction, or for some other collateral reason. A hearing on a Sec. 2255 motion must be granted "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.

Petitioner makes three challenges to the validity of his sentence, none of which entitle him to a hearing or a vacation of sentence:

1) Petitioner states that the government informers who testified at the trial had a prior criminal record and hence were incompetent witnesses. While the record might reflect on the government witnesses due to prior criminal records, a witness is not made incompetent to testify by reason of a prior record, F.R.Cr.P.Rule 26; Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406; Schoppel v. United States, 4 Cir., 270 F.2d 413; United States v. Margolis, 3 Cir., 138 F.2d 1002, and such record merely reflects on the witness' credibility. 3 Wharton, Criminal Evidence, Sec. 934. Petitioner concludes that because of alleged prior records, two of the government witnesses were disqualified and therefore their testimony was automatically perjured. Aside from the fact that credibility is a question for the jury, prior criminal conviction, even for perjury itself, does not confirm that the witness will lie. See United States v. Margolis, supra. Secondly, this is a matter which could have been raised on the first motion as well as during the trial and thus is within the sound discretion of the District Court to reject this grounds for vacation of sentence.

2) Petitioner notes from the record that a co-defendant made a statement protesting petitioner's innocence during the sentencing of the co-defendant after a guilty plea. Co-defendant Patsy Dolores Edgerson stated to the sentencing court, when asked if she had anything to say:

"Yes, Judge. I would like to make the statement that I am guilty on the statement that this man, that I said that Rush had nothing to do on those other counts with me."

The Court instructed defendant Edgerson that she should be more concerned about herself and less concerned about Rush and then proceeded with the sentencing. Whatever possible efficacy such an exculpatory statement might conceivably have had, such efficacy is completely neutralized by the fact that the record discloses that petitioner was given adequate opportunity to use Edgerson's testimony at his trial on August 25, 1960. The record reflects that the court issued a writ of "habeas...