355 F2d 543 Berube v. United States

355 F.2d 543

Allan James BERUBE, Appellant,
UNITED STATES of America, Appellee.

No. 22348.

United States Court of Appeals Fifth Circuit.

Jan. 28, 1966.

Carl G. Swanson, Cocoa Beach, Fla., for appellant.

Edward F. Boardman, U.S. Atty., Tampa, Fla., for appellee.

Before TUTTLE, Chief Judge, THORNBERRY, Circuit Judge, and CARSWELL, District Judge.


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The district court had before it appellant's petition under 28 U.S.C. 2255 which sought to set aside his judgment of commitment on the grounds that he had not been apprised of his right of appeal, and/or his failure to take a timely appeal was due to fear engendered by acts of government personnel.


We agree with the district court's conclusion that the failure to file a timely notice of appeal is not one of the grounds upon which a judgment of commitment may be set aside under 28 U.S.C. 2255. Williams v. United States of America, 307 F.2d 366 (9th Cir., 1962). Despite this, however, the district court granted a full hearing and found from the evidence thus adduced that this appellant was, in fact, advised of his right of appeal on the day of his sentencing, and, further, that his failure to appeal was not due to any actions by government agents or prosecutors.


The record before us fully supports these findings by the district court and its denial of relief under 28 U.S.C. 2255 is