362 F2d 1010 Lyles v. United States

362 F.2d 1010

Henry LYLES, Appellant,
UNITED STATES of America, Appellee.

No. 22901.

United States Court of Appeals Fifth Circuit.

July 8, 1966.

James O. Murphy, Jr., Asst. U.S. Atty., Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and BROWN and COLEMAN, Circuit Judges.


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Appellant moved to vacate sentence under 28 U.S.C.A 2255. Initially the District Court denied relief without a hearing. We remanded the cause for hearing to determine whether Appellant was improperly denied right to appeal his original conviction and, if so, to inquire into the validity of the original conviction. Lyles v. United States, 5 Cir., 1965, 346 F.2d 789. After a full and complete hearing, the District Court concluded that Appellant was not improperly denied the right to appeal his original conviction and held further that there was no error in the original trial. Relief was denied. We find it unnecessary to determine whether actions by Appellant's counsel in not pursuing the appeal amounted to a denial of any fundamental right. We do this because under our prior remand, the District Court was to review the intrinsic merits of the original conviction, and we in effect in reviewing that decision have examined the whole case as though it were on original appeal. As the District Judge found, we too find that trial was free from error.