328 F2d 606 McCaffrey v. United States
328 F.2d 606
Robert E. McCAFFREY, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Fifth Circuit.
February 25, 1964.
Robert E. McCaffrey, Abington, Pa., for appellant.
Edward A. Kaufman, Asst. U. S. Atty., Miami, Fla., William A. Meadows, Jr., U. S. Atty., Southern District of Florida, Miami, Fla., for appellee.
Before TUTTLE, Chief Judge, and PHILLIPS* and JONES, Circuit Judges.
This appeal from denial of a motion to vacate judgment of conviction under § 2255 raises two contentions. The first is that there was no intelligent and effective waiver of counsel. The record is plain. The appellant expressly stated that he did not wish to have counsel. He pleaded guilty and, upon interrogation, reiterated his desire to plead. There is no merit in this contention.
The second ground of appeal is the claim that the motion should not have been denied without a hearing because of his allegation that he was incompetent mentally and physically to waive counsel or enter the guilty plea. The difficulty with this is that appellant does not allege specifically or categorically that he was incompetent or otherwise incapacitated to such a degree that he did not intelligently waive the right to counsel. He skirts all around the subject, but the petition simply does not allege this fact.
There was no error in the order of the trial court denying relief.
Of the Tenth Circuit, sitting by designation