Arthur Reed v. United States

441 F.2d 569 Arthur REED, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 24549. United States Court of Appeals, Ninth Circuit. April 30, 1971. Arthur Reed, Jr., in pro per. Robert L. Meyer, U.S. Atty., Robert L. Brosio, Chief, Criminal Division, George G. Rayborn, Asst. U.S. Atty. Los Angeles, Cal., for appellee. Before BARNES, BROWNING and KILKENNY, Circuit Judges. BARNES, Circuit Judge: 1 After pleading guilty to robbing a National Bank in violation of 18 U.S.C. 2113(a), petitioner-appellant (hereafter petitioner) was sentenced to twelve years in prison on February 5, 1968, under the provisions of 18 U.S.C. 4208(a) (2). May 19, 1969, and dismissed on May 28, habeas corpus motions under 28 U.S.C. 2255; these proceedings were dismissed without evidentiary hearings on August 8, 1968 (C.T. Vol. II pp. 8-10) and January 10, 1969 (C.T. Vol. II pp. 31-32), respectively. 2 The proceeding resulting in this appeal, which raises essentially the same issue as the previous two, was filed on May 18, 1969, and dismissed on May 28, 1969. In none of the proceedings was the petitioner accorded a formal evidentiary hearing because the habeas judge, who was also the…

After pleading guilty to robbing a National Bank in violation of 18 U.S.C. § 2113 (a), petitioner-appellant (hereafter petitioner) was sentenced to twelve years in prison on February 5, 1968, under the provisions of 18 U.S.C. § 4208 (a) (2). He thereafter instituted two habeas corpus motions under 28 U.S.C. § 2255 ; these proceedings were dismissed without evidentiary hearings on August 8, 1968 (C.T. Vol. II pp. 8-10) and January 10, 1969 (C.T. Vol. II pp. 31-32), respectively.

The proceeding resulting in this appeal, which raises essentially the same issue as the previous two, was filed on May 19, 1969, and dismissed on May 28, 1969. In none of the proceedings was the petitioner accorded a formal evidentiary hearing because the habeas judge, who was also the sentencing judge, believed that the record clearly established that the petitioner’s claim was patently without merit. Jurisdiction over this appeal rests upon 28 U.S.C. § 1291 . For reasons stated in the following discussion, we feel required to reverse and remand.

The essence of petitioner’s claim in all three habeas proceedings in the District Court and in this appeal is that he was the recipient of certain promises from…

(dissenting):

I believe the provisions of 28 U.S.C. § 2255 and the general principles stated in North Carolina v. Alford, 400 U.S. 25 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970); Brady v. United States, 397 U.S. 742 , 90 S.Ct. 1463 , 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970); and Parker v. North Carolina, 397 U.S. 790 , 90 S.Ct. 1458 , 25 L.Ed.2d 785 (1970), require an affirmance. I emphasize that this is the third 2255 proceeding prosecuted by appellant. Essentially the same issue is involved in all three petitions. Section 2255 prohibits this repetition.