James William Wheeler v. United States

Appeal from an order denying, without a hearing, petitioner’s motion for relief pursuant to 28 U.S.C. § 2255 .

Petitioner in substance makes four contentions. Of them, three are frivolous.

1. That petitioner pleaded guilty to the criminal charges [robbery of a national bank, 18 U.S.C. § 2113 (a)] in reliance upon the opinions of the “arresting F.B.I. agent, attorney, probation officer and several United States marshals that he would not receive a sentence of more than five years,” even if true, would not warrant setting aside his conviction and plea. United States v. Edmo, 456 F.2d 240 (9th Cir. 1972).

2. So, too, if the court, before imposing sentence, had not disclosed to him the material contained in the report of the presentence investigation. Rule 32(c)(2), F.R.Crim.P.; See United States v. Samaniego, 437 F.2d 1244 (9th Cir. 1971).

3. And petitioner’s motion to reduce sentence was manifestly untimely. Rules 35, 43(b), F.R.Crim.P.

4. However, petitioner’s fourth contention, if established, would have merit; but the court may have rejected it on the basis of an erroneous view of the law. Thus, petitioner alleged in his petition that the court in fixing sentence considered…