427 F2d 157 Grisham v. United States
427 F.2d 157
James Durwood GRISHAM, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.
United States Court of Appeals, Tenth Circuit.
June 3, 1970.
Rehearing Denied June 29, 1970.
James R. Briscoe, Denver, Colo., for petitioner-appellant.
William R. Burkett, U. S. Atty., Oklahoma City, Okl., for respondent-appellee.
Before LEWIS, Chief Judge, and PICKETT and HICKEY, Circuit Judges.
Petitioner James Durwood Grisham, in 1963, was convicted on a six count indictment and sentenced to imprisonment for five years on each count, to be served concurrently, for violation of 26 U.S.C. §§ 4742(a), 7237(b), 4744(a) (1), 4744 (a) (2), 4755(a) and 21 U.S.C. § 176a, all involving trafficking in marijuana. No appeal was taken. In this 28 U.S.C. § 2255 motion, petitioner asserts that on the principles announced in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) and like cases, with respect to his Fifth Amendment right against self-incrimination, his conviction and sentence should be vacated. Petitioner did not allege that the self-incrimination issue was raised as a defense at the trial of the case. The motion was denied without a hearing. The sole question presented in this appeal then becomes whether the petitioner in a § 2255 proceeding must affirmatively allege that he asserted the Fifth Amendment right against self-incrimination under Leary, supra.
We have held that the privilege against self-incrimination cannot be raised for the first time in post-conviction proceedings. Sepulveda v. United States, 415 F.2d 321 (10th Cir. 1969). The failure to allege that the Fifth Amendment privilege was asserted at the trial is fatal to the petitioner's motion.1 Hilliard v. United States, 345 F.2d 252 (10th Cir. 1965).
In its order denying the motion, the trial court found that "the record conclusively shows that petitioner made no plea based on the privilege against self-incrimination. * * *" The record here does not disclose the basis for this finding