230 F2d 869 Davis v. United States

230 F.2d 869

Danny Allen DAVIS, Appellant,


UNITED STATES of America, Appellee.

No. 15880.

United States Court of Appeals Fifth Circuit.

March 16, 1956.

Danny Allen Davis, in pro. per.

William O. Braecklein, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.


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Under 28 U.S.C.A. § 2255 appellant questioned the validity of his conviction for possessing a narcotic drug in violation of 26 U.S.C.A. § 2553(a) and five year sentence as a second offender under 26 U.S.C.A. § 2557(b) (1). Upon arraignment, appellant refused the appointment of counsel and pleaded guilty. The following then occurred


"The Court: We will impose a sentence of two years, United States Prison, by the Attorney General, with hospitalization recommended.


"Mr. Binion: Your Honor, there is an information that has been filed by Mr. West showing a prior conviction under the Boggs Act, and therefore — under the Boggs, it would be give (sic) years minimum, Your Honor. This is a prior conviction.


"The Court: Call his attention to it and see if he denies it.


"Mr. Binion: Do you deny this prior conviction as alleged in the information filed herein?


"Mr. Davis: I didn't do narcotics.


"Mr. Binion: Read it to him, Bill.

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"Mr. West: It says here in our information that on March 23, 1950, at Dallas that you were arrested for violation of the Marijuana Tax Act and on May 11, 1950 you were sentenced to two years and released on December 18, 1951.


"Mr. Binion: Do you admit that?


"Mr. Davis: Yes, sir.


"The Court: Being arraigned a second time on the matter, I believe you say the minimum would be five?


"Mr. Binion: Yes, sir.


"The Court: I was thinking the minimum would be ten in that case.


"Mr. Binion: No, that is a third.


"The Court: A third offense?


"Mr. Binion: Yes, sir.


"The Court: All right, we will have to impose a sentence of five years in this matter but we will still recommend hospitalization."


The burden of appellant's complaint is that after his prior conviction had been called to the attention of the Court, he was not again offered the aid of counsel, the appellant relying on Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. We do not think that those decisions nor any other require that the offer of counsel be repeated because of the more severe punishment made necessary by the prior conviction.


Appellant does not even yet claim that he was innocent of either the first or second offense. He received the minimum sentence for the second offense. It is difficult to see how counsel could have helped him any more than did the court.