404 F2d 935 Flynn v. United States

404 F.2d 935

George Harrison FLYNN, Appellant,

No. 17244.

United States Court of Appeals Third Circuit.

Submitted on Briefs Oct. 8, 1968.
Decided Oct. 23, 1968.

George Harrison Flynn pro se.

Robert W. Page, Asst. U.S. Atty., Camden, N.J. (David M. Satz, Jr., U.S. Atty., Newark, N.J. on the brief), for appellee.


Before McLAUGHLIN, STALEY and VAN DUSEN, Circuit Judges.


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This appeal challenges a November 30, 1967, District Court order denying an application to vacate or otherwise correct, purseant to F.R.Crim.P. 35 or 28 U.S.C. 2255, a 15-year sentence entered September 23, 1966, on pleas of guilty to two counts of an indictment charging violation of 18 U.S.C. 2113(a). This District Court order recited that appellant had filed a prior application (Civil No. 172-67) which was 'substantially the same' and that this order sas being entered for 'the reasons set forth' in the Memorandum filed in that prior action on April 20, 1967, when the prior application was denied.1


After careful examination of the record and the briefs, the order of November 30, 1967, will be affirmed for the reasons stated by Senior Judge Madden in his Memorandum of April 20, 1967 (Civil No. 172-67, D.N.J.).2


It is noted that 28 U.S.C. 2255 contains this language:

'The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.'


Since the length of the sentence was less than that permitted on each of the two counts of the indictment to which the pleas of guilty were entered, any deficiency in the court's not referring at the time of pleas to the intent required under Count I of the indictment did not make the sentence illegal. See Green v. United States, 365 U.S. 301, 306, 81 S.Ct. 653, 656, 5 L.Ed.2d 670, rehearing denied 365 U.S. 890, 81 S.Ct. 1024, 6 L.Ed.2d 201 (1961), where the court said:

'Plainly enough, the intention of the district judge was to impose the maximum sentence of twenty-five years for aggravated bank robbery, and the formal defect in his procedure should not vitiate his considered judgment.'

The inadvertent reference in the 4/20/67 Memorandum to the offense in Count II as being a violation of 18 U.S.C. 2113(b) (rather than 2113(a)) was at the most harmless error.