258 F2d 557 Caviness v. United States

258 F.2d 557

James I. CAVINESS, Appellant,
UNITED STATES of America, Appellee.

No. 7636.

United States Court of Appeals Fourth Circuit.

Argued June 9, 1958.

Decided June 18, 1958.

Robert D. Lewis, Asheville, N. C. (Court appointed counsel) for appellant. James I. Caviness, pro se, on the brief.

H. Vernon Hart, Asst. U. S. Atty., Greensboro, N. C. (Robert L. Gavin, U. S. Atty., Greensboro, N. C., on the brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.


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The defendant in this application under Title 28 U.S.C.A. § 2255, seeks to raise again the same point considered and decided by this Court in United States v. Caviness, 4 Cir., 226 F.2d 216. However, he advances no matter which was not given careful consideration in the former proceeding.


The defendant attaches to his petition a copy of a letter written by the Sentencing Judge to the Parole Board, recommending parole provided the petitioner's prison record justified it. The defendant asserts that the denial of parole, in light of the statements of the Trial Judge to the Parole Board, establishes the excessiveness of the sentence in the first instance. As much might be said in any case in which the Parole Board, for reasons sufficient to it, denies parole. It does not tend in the least to establish the illegality of the sentence. In his recommendation, the District Judge expressed recognition of the fact that he acted without information of the defendant's prison record, a record which the Parole Board must carefully consider in its deliberations. If any merit were found in this contention of the defendant, the effect would be to deny the discretionary authority of the Parole Board in every instance in which the sentencing judge makes a conditional recommendation of parole.


Order affirmed.