United States v. Darrell James Brown

I dissent. 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.…

413 F.2d 878 UNITED STATES of America, Plaintiff-Appellee, v. Darrell James BROWN, Defendant-Appellant. No. 23156. United States Court of Appeals Ninth Circuit. June 27, 1969. Rehearing Denied August 15, 1969. 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. BARNES, Circuit Judge: 1 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. 2 We quote from the order of the district court judge (Judge Ferguson): 3 "On…

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…