Scribd Logo
Upload

Welcome to Scribd!

  • Calvin Fennell v. United States, 313 F.2d 941, 10th Cir. (1963)

    Uploaded by

    Scribd Government Docs
    22 views2 pages
    The Court of Appeals affirmed the district court's denial of Calvin Fennell's second motion to vacate his conviction and sentence under Section 2255. Fennell alleged that during deliberations, the jury twice left the jury room to communicate with the judge, but the court found this did not present new substantial issues that could be considered in a collateral proceeding. The court agreed with the district court that the files and records did not show a legal basis for relief. Any errors regarding communications between the court and jury could only be challenged through a direct appeal.

    Original Description:

    Filed: 1963-01-28 Precedential Status: Precedential Citations: 313 F.2d 941 Docket: 7203

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    The Court of Appeals affirmed the district court's denial of Calvin Fennell's second motion to vacate his conviction and sentence under Section 2255. Fennell alleged that during deliberations, the jury twice left the jury room to communicate with the judge, but the court found this did not present new substantial issues that could be considered in a collateral proceeding. The court agreed with the district court that the files and records did not show a legal basis for relief. Any errors regarding communications between the court and jury could only be challenged through a direct appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    22 views2 pages

    Calvin Fennell v. United States, 313 F.2d 941, 10th Cir. (1963)

    Uploaded by

    Scribd Government Docs
    The Court of Appeals affirmed the district court's denial of Calvin Fennell's second motion to vacate his conviction and sentence under Section 2255. Fennell alleged that during deliberations, the jury twice left the jury room to communicate with the judge, but the court found this did not present new substantial issues that could be considered in a collateral proceeding. The court agreed with the district court that the files and records did not show a legal basis for relief. Any errors regarding communications between the court and jury could only be challenged through a direct appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 2

    313 F.

    2d 941

    Calvin FENNELL, Appellant,


    v.
    UNITED STATES of America, Appellee.
    No. 7203.

    United States Court of Appeals Tenth Circuit.


    January 28, 1963.

    Carl L. Harthun, Denver, Colo., for appellant.


    Phillips Breckinridge, Tulsa, Okl. (John M. Imel, Tulsa, Okl., was on brief
    with him), for appellee.
    Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit
    Judges.
    PER CURIAM.

    This is an appeal from the District Court's denial of Calvin Fennell's second
    motion to vacate the judgment and sentence imposed pursuant to his jury
    conviction for violations of the federal narcotic laws and for conspiracy. The
    District Court's denial of this second or successive motion under Section 2255,
    Title 28 U.S.C., is based upon the premise that the movant "raises no new
    substantial issues not covered by the prior motion."

    After entering upon service of his sentence, the petitioner filed in the District
    Court a series of papers which the trial court treated as a motion to vacate under
    Section 2255, and granted leave to proceed in forma pauperis. In substance, the
    writings complained of his conviction as being obtained by the use of fraud and
    perjury on behalf of the prosecutor and government agent; improper joinder of
    offenses and co-defendants; arrest on one charge and indictment and trial on the
    others; and insufficiency of the evidence to sustain the conviction. Upon a full
    hearing, in which the petitioner appeared in person and by appointed counsel,
    and in which he testified in his own behalf, the trial court denied the petition,
    based upon findings of fact negating all of the allegations in his complaint.

    A petition for rehearing and motion to appeal in forma pauperis was denied on
    the grounds that it was frivolous and not taken in good faith. On petition to this
    court, leave was granted to proceed in forma pauperis. The case was docketed
    and the original record, including the transcript of the proceedings in the trial
    court, were certified here. Upon consideration of the whole record, we were of
    the opinion that the trial court's findings and conclusions of law were amply
    supported by the evidence, and that the petitioner's contentions were frivolous.
    An order was accordingly entered denying leave to proceed further in forma
    pauperis and the appeal was dismissed.

    This second motion under Section 2255 alleges a ground for relief not
    specifically presented or decided on the former motion, namely, that while
    deliberating on the petitioner's guilt or innocence, the jury left the jury room
    twice to communicate with the presiding judge: first, to inquire concerning the
    nature of the charge against the accused; and second, whether, if the jury found
    the accused guilty, would the court "be lenient toward him."

    Inasmuch as the grounds for relief asserted in this motion are not the same or
    similar to those asserted in the former motion, the court was required to
    entertain the motion for the purpose of determining, (1) whether for some
    justifiable reason the present grounds were not asserted in the former motion;
    and (2) if so, whether the files and records in the case showed any legal basis
    for the relief sought. If they do, it was then incumbent on the trial court to hear
    and decide the newly asserted issues. United States v. Jones, D.C., 194 F.Supp.
    421, affm'd, 10 Cir., 297 F.2d 835; Barrett v. Hunter, 180 F.2d 510, 20
    A.L.R.2d 965; see also Ray v. United States, 10 Cir., 295 F.2d 416.

    We agree with the trial court that there were no new substantial issues
    cognizable in this collateral proceedings. There is nothing in the record to
    indicate or from which it can be inferred that the alleged communications
    between court and jury were improper, but, if so, they were errors in the trial of
    the case cognizable only on direct appeal. Humes v. United States, 10 Cir., 186
    F.2d 875; Hahn v. United States, 10 Cir., 178 F.2d 11; Hurst v. United States,
    10 Cir., 177 F.2d 894; United States v. Spadafora, 7 Cir., 207 F.2d 291. There
    is nothing to indicate that the communications operated to deny or infringe the
    constitutional rights of the accused so as to render the judgment of sentence
    vulnerable to this collateral attack.

    The judgment is affirmed.

    You might also like