363 F2d 432 Gillespie v. United States

363 F.2d 432

James B. GILLESPIE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 22998.

United States Court of Appeals Fifth Circuit.

July 19, 1966.

James W. Matthews, Asst. U.S. Atty., Miami, Fla., for appellee.

Before WISDOM and THORNBERRY, Circuit Judges and COX,1 District judge.

PER CURIAM:

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1

This appeal is from an adverse decision on a motion prepared on a mimeographed form furnished by the Clerk of the Court for use by the prisoner under 28 U.S.C.A. 2255. The appellant in custody in a New York prison on a state offense as a multiple offender under the laws of the state of New York, sought to have the trial court vacate a sentence imposed and werved by the prisoner in 1949. That motion was overruled and a rehearing was denied on the ground that the appellant had served his sentence and was not in custody. The impact of that conviction was applied and felt by appellant in the fixation of his current sentence as a multiple offender under New York law. Courts in New York will not consider application for Writs of Error Coram Nobis on convictions outside of New York. The record here does not in any wise negate the verified averments therein to the effect that appellant was induced by the United States Attorney to plead guilty to the criminal information before the Court and that he was not advised by the Court as to the seriousness of the offense with which he was then charged. The other averments in the motion to the effect that he was not offered and did not waive counsel and that he was not indicted and did not waive indictment are false and are completely negated by the record. This circumstance gave rise to the power of the trial court under the All Writs Statute (28 U.S.C.A. 1651(a)) to conduct a hearing (with or without the presence of the appellant) to determine factually as to the accuracy of such charges in the interest of justice and fair play and to vacate its former sentence and reinstate said case for proper disposition if such facts were established to the reasonable satisfaction of the Court. Those undenied charges in this record which were not heard or decided by the trial court must be treated here on this record as unchallenged and as true under the applicable rule announced in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248.

2

The decision of the trial court to the contrary is reversed and this case is remanded for disposition accordingly.

1

William Harold Cox, United States District Judge for the Southern District of Mississippi, sitting by designation