James Delbert Smith v. United States

(dissenting) :

I cannot accept the majority’s disposition of this appeal. My disagreement relates to only two of the claims on which Smith has undertaken to obtain an evidentiary hearing. The first is his allegation that he was deprived of the effective representation of counsel, and the second is that he was induced to plead guilty by the promise, ultimately unfulfilled, that the sentences would be concurrent, rather than consecutive.

Assuming that the allegations in respect to the two significant constitutional claims were imperfect, the District Court might, in the circumstances, have allowed Smith, a prisoner undertaking to represent himself, to amend his pleadings so as to endow them with the hy-pertechnical specificity which my Brothers would require. Now, it can be expected that Smith will file another petition, outlining, in even greater detail, the bases of his claims, and this will add yet another case to the docket of the District Court and ultimately, perhaps, to the burgeoning docket of this court.

It is not difficult to perceive the two principal contentions made by Smith, and, in fact, his allegation in support of one of them is quite specific. Smith alleged “. .…

454 F.2d 1330 James Delbert SMITH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 26176. United States Court of Appeals, Ninth Circuit. Jan. 27, 1972. James Delbert Smith, in pro. per. Bart M. Schouweiller, U. S. Atty., Reno, Nev., for appellee. Before ELY, WRIGHT and CHOY, Circuit Judges. PER CURIAM: 1 This is the second time that Smith has come to this court on appeal from a District Court's denial without a hearing of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Sec. 2255 . The facts relating to his passage through the courts prior to filing the instant motion are set out in full in our first opinion. Smith v. United States, 409 F.2d 1188, 1189 (9th Cir. 1968). There is no need to restate them here. 2 In the instant action, Smith raises ten claims, five of which were made in his previous case. We affirm the District Court's denial of all claims. 3 1. In Smith's original Sec. 2255 motion, he claimed that his rights under Rule 48(a), Fed.Rules Crim.Proc., were abridged by a dismissal of a count against him at trial without his permission. The district judge dismissed the claim without a hearing, finding it to be frivolous,…

This is the second time that Smith has come to this court on appeal from a District Court’s denial without a hearing of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 . The facts relating to his passage through the courts prior to filing the instant motion are set out in full in our first opinion. Smith v. United States, 409 F.2d 1188, 1189 (9th Cir. 1968). There is no need to restate them here.

In the instant action, Smith raises ten claims, five of which were made in his previous case. We affirm the District Court’s denial of all claims.

1. In Smith’s original § 2255 motion, he claimed that his rights under Rule 48(a), Fed.Rules Crim.Proc., were abridged by a dismissal of a count against him at trial without his permission. The district judge dismissed the claim without a hearing, finding it to be frivolous, since absolutely no prejudice was shown. The judge need not have entertained a claim previously determined where, as here, he found that the ends of justice would not be served. “Prior determination” usually requires a “prior hearing.” However, a “determination” may also result, absent a hearing, where the face of the record conclusively…