412 F2d 859 Pickens v. United States

412 F.2d 859

Elmer B. PICKENS, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 27280.

United States Court of Appeals Fifth Circuit.

July 24, 1969.

Appeal from the United States District Court for the Northern District of Alabama at Birmingham; T. Hoyt Davis, Judge.

Elmer B. Pickens, pro se.

R. Macey Taylor, Asst. U. S. Atty., Macon L. Weaver, U. S. Atty., Birmingham, Ala., for appellee.

Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.

PER CURIAM:

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It is ordered, sua sponte, that counsel be appointed to represent appellant and to assist the court in the determination whether the case of United States v. Jackson, 1968, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, applied to the Federal Bank Robbery Act, 18 U.S.C.A. § 2113(e) in Pope v. United States, 1968, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317, should be applied retroactively, and if so, whether the decision should be applied in the instant case in view of the fact that appellant's sentence was fixed by a jury on his plea of guilty. See Lone v. United States, D.C.N.D.Cal., 299 F.Supp. 855, April 28, 1969, for a collation of authorities. See Brady v. United States, 395 U.S. 976, 89 S.Ct. 2146, 23 L.Ed.2d 764, certiorari granted on retroactivity question under federal kidnapping act.