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United States v. Stevens

decided: August 4, 1955.

UNITED STATES OF AMERICA
v.
JEROME A. STEVENS, APPELLANT.



Author: Kalodner

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

Two relatively simple issues are presented for our determination but their disposition inescapably entails the tedious unravelling of a tangled skein of procedure both in the court below and here.

It appears that on May 14, 1954, the appellant, Jerome A. Stevens, following a jury verdict of guilty, was sentenced by the United States District Court for the District of New Jersey to imprisonment for twenty-five years on two counts of an indictment charging bank robbery, based on 18 U.S.C. § 2113(a, d).Stevens had been represented at his trial by a court-appointed attorney, William D. McGlynn,Esq.

Subsequent to his sentencing, Stevens pro se, on August 23, 1954, filed an "Affidavit in forma pauperis, in support of Motion requesting Authorization for records * * * to be furnished without cost." The "records" sought included a transcript of the trial.

On September 8, 1954, before disposition of this motion, Joseph F. Walsh, Esq. (who apparently had been designated by the District Court as Stevens' counsel in place of McGlynn), filed "Notice of Motion" stating that he would, on September 27th, move the court for the setting of a date to hear a motion to vacate and set aside Stevens' sentence, under 28 U.S.C. § 2255.

On September 20th, Stevens interposed another "Motion and Supporting Affidavit to Furnish Defendant Certain Records at Expense of the United States" stating therein that he required the trial transcript in order to prepare and file a motion to vacate sentence. In this paper Stevens stated that his motion to vacate would be based on these contentions: he had not been adequately represented by his court-appointed trial counsel; he had not been properly arraigned; he had not been present at every stage of the proceeding, etc. etc.

On October 11th, Stevens filed "Notice of Election to Act as Own Attorney, etc." In it he stated that he had notified Walsh that he did not desire to have him as his counsel; that he had not been notified by the Court that it had appointed Walsh to act as his counsel; that he repudiated Walsh's representation and particularly Walsh's "Notice of Motion" (to vacate sentence) of September 8th.

The docket of the District Court discloses that on October 25th there was "Hearing on motion to vacate sentence. Ordered Mr. Walsh relieved of his assignment as counsel, Decision reserved." The docket further discloses that on October 27th the District Court "Ordered minutes of 10-25-54 amended to reflect that only proceeding before the Court on that date was application by Joseph F. Walsh to be relieved as counsel for defendant, which application was granted."

On October 28th, the District Court filed "Opinion and Order" which purported to dispose of a motion by Stevens to vacate sentence and another motion for a transcript of the record without cost.

On November 15, 1954, Stevens filed "Motion to Amend Order of October 28, 1954" asserting that the court had "erroneously" stated therein that he had filed a motion to vacate sentence and, declaring that the only motion before the court has been his motion for a transcript of the record without cost.

On November 17, 1954, the District Court filed "Memorandum and Order" specifically "denying the application of the defendant * * * for a copy of the transcript of the record of his trial, at the expense of the United States." The Court however, made no disposition of Stevens' application to amend its Order of October 28th by striking from it all reference to a motion to vacate sentence.

This was the posture of the record below when, on December 10th the District Court ordered that leave be granted to Stevens "to file a notice of appeal from the orders of October 28th, 1954 and November 17th, 1954" without payment of costs. On the same day the Deputy Clerk of the District Court filed "Notice of Appeal" from the Orders of October 28th and November 17th, of his own accord, as a protective measure.

To add filip to this situation, Stevens on December 20th filed his own "Notice of Appeal" limiting it to the District Court's order of November 17th, which related only to the denial of his request for a trial transcript, and further, on December 28th, Stevens filed "Motion to Amend Notice of Appeal filed December 10, 1954, etc." (the Deputy Clerk's Appeal) by deleting that ...


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