The opinion of the court was delivered by: WATSON
This is a motion filed under the provisions of Section 2255 of Title 28 U.S.C.A. to vacate judgment and sentence in criminal case No. 9620. An answer to said motion was filed by the respondent and a reply was filed by the Petitioner. Petitioner was tried and convicted in this Court in December, 1939, of having violated Title 12 U.S.C.A. § 588b, sub-sec. (a), now Title 18 U.S.C.A., Section 2113(a). Petitioner was found guilty on both counts, one charging him with entering the Plymouth National Bank with intent to commit a felony and the other with entering said Bank with intent to commit larceny. Petitioner was sentenced to serve 15 years on each count to be served concurrently and not consecutively.
The grounds upon which the motion is based are as follows:
(1) That Petitioner was never given a preliminary hearing; and did not know of accusation until date of trial, December 6, 1939.
(2) That when he asked Mr. Maguire, the District Attorney, for a postponement of trial, so that Petitioner could get in touch with his family and counsel of his own choosing, he was denied.
(3) That Petitioner is innocent of the crime of which he is convicted.
(4) That fraud and perjured evidence were used to convict Petitioner.
(5) That Petitioner did not receive the protection of the 'Bill of Rights'.
(7) That he was never informed that an indictment had been brought against him, or given a copy of indictment before trial and conviction.
(8) That he was not notified in advance, of trial date, so that he could make preparations for trial.
(9) That he was put on trial after a five-minute talk with a court-appointed attorney.
(10) That Petitioner was held illegally for nine days at the Wyoming State Police Barracks, and questioned day and night mostly by Officer Fallan, who invented a phony confession; Officer Fallan's testimony about a confession was illegally introduced at the trial and was absolute perjury and a fraud.
(11) That he was indicted as committing crime by 'force and violence' which is defined by 588b(a) 'as an element of robbery but not of burglary or larceny'. Petitioner is charged with attempting to burglarize a bank during the night.
A proceeding under Section 2255 of Title 28 is in the nature of an application for a writ of error coram nobis and is governed by the general principle applicable to habeas corpus. United ...