255 F2d 271 Tucker v. United States

255 F.2d 271

Forrest Silva TUCKER, Appellant,
UNITED STATES of America, Appellee.

No. 15792.

United States Court of Appeals Ninth Circuit.

April 14, 1958.

Joseph A. Murray, San Francisco, Cal., Forrest Silva Tucker, Alcatraz, Cal., in pro. per., for appellant.

Lloyd H. Burke, U.S. Atty., Richard H. Foster, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before STEPHENS, Chief Judge, and DENMAN and ORR, Circuit Judges.


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Our opinion of March 27, 19581 is amended to read as follows:


Tucker appeals from a judgment in a 28 U.S.C. 2255 proceeding denying his motion to be released from imprisonment on a sentence for violating 18 U.S.C. 2113(a), robbery of a federal savings and loan society and so doing with the use of a dangerous weapon, jeopardizing human life in violation of subsection (d) of that section.


His first contention is that the evidence does not support the verdict. That question is finally determined in the proceedings in which the accused is sentenced and cannot be considered in a 2255 proceeding. Hastings v. United States, 184 F.2d 939, 940. Cf. Flores v. United States, 9 Cir.,238 F.2d 758; Brown v. United States, 9 Cir., 222 F.2d 293.


His second contention is that the District Court failed to consider the question whether the prosecuting officer had introduced false evidence concerning the prior convictions of Tucker leading to a prejudicial effect on the sentencing judge and resulting in a 25-year sentence. However, attached to and made a part of the motion is a copy of the transcript of the testimony of the Government officers concerning the prior convictions in a hearing in which both appellant and his attorney, participated. There the Government's witness testified in detail to the record of prior convictions and no objection was made by either the defendant or his counsel to any of the testimony.


On the contrary, appellant after so participating in the hearing was asked whether he would like to make any suggestions in his own behalf. Whereupon he stated that he had committed the crimes previously described. With the record in this condition the case is entirely unlike Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, and the District Court properly held that 'the motion and the files and records of the case conclusively show that the plaintiff is entitled to no relief.'


The judgment is affirmed. The petition for rehearing is denied.


Opinion withdrawn