323 F2d 935 Graf v. United States

323 F.2d 935

Donald Leon GRAF, Appellant,
UNITED STATES of America, Appellee.

No. 17475.

United States Court of Appeals Eighth Circuit.

Oct. 22, 1963, Rehearing Denied Nov. 22, 1963.

Thomas Moore, St. Paul, Minn., represented Donald Leon Graf in the District Court.

Miles W. Lord, U.S. Atty., Minneapolis, Minn., represented the United States in the District Court.

Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.


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The District Court permitted appellant to file notice of appeal from the denial of his motion to vacate sentence under 28 U.S.C.A. 2255, but it refused him leave to proceed further in forma pauperis, on the ground that the appeal was frivolous. He now seeks to have us grant him such leave. We think the District Court was right in regarding the appeal as frivolous.


As a matter of public interest, however, in not having any attack upon a criminal sentence remain open and unterminated, and hence here to clear the record of the appeal which is pending from the filing of notice of appeal, we shall permit the appeal to be docketed without payment of fee, and shall then dismiss it as frivolous.


The single ground for relief set forth in appellant's motion to vacate was that his plea of guilty had not been voluntarily made, but that it was the product of threats, implied threats, promises and illegal inducement.


The trial court had appellant returned from the Leavenworth Penitentiary, and appellant retained counsel to represent him. A pretrial conference was held, and thereafter a full-scale hearing was engaged in. Development was permitted to be made of every conceivable aspect which could possibly have any bearing on the question of the voluntariness of his plea, such as whether there was anything (1) in his mental or physical condition, (2) in the representation of his counsel, or (3) in his arrest or the Commissioner proceedings, which could have imposed any coercion upon him so as to control his action. The court found that there was not, and that the plea had been made voluntarily and was free from any coercion. Indeed, beyond the corroboration existing in the other evidence, a reading of the transcripts of appellant's arraignment and sentencing is of itself sufficient to so persuade.


Appeal dismissed.