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MARTIN v. UNITED STATES

June 3, 1971

James G. MARTIN, Petitioner,
v.
UNITED STATES of America, Respondent


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge:

 The matter before the court is a motion to vacate sentence pursuant to Title 28 U.S.C. § 2255. The petitioner, James G. Martin, was indicted in four counts for violations of § 174 of Title 21 U.S.C. and § 4704(a) of Title 26 U.S.C. At the trial held on June 8, 1966, a jury found the petitioner guilty as charged in all four counts. He was sentenced June 9, 1966, to two concurrent terms of 10 years under counts one and two, and to two concurrent terms of 10 years under counts three and four. The sentences imposed on counts three and four were to run consecutively with the sentences imposed on counts one and two. The petitioner's conviction was affirmed on appeal, United States v. Martin, 386 F.2d 213 (3d Cir. 1967) and certiorari was denied by the United States Supreme Court, Martin v. United States, 393 U.S. 862, 89 S. Ct. 142, 21 L. Ed. 2d 130 (1968).

 Subsequently, on February 20, 1969, the petitioner filed a motion under Rule 35, Fed. R. Crim. P. for correction of sentence. After hearing, the concurrent 10 year sentences imposed on counts two and four of the indictment were vacated. United States v. Martin, 302 F. Supp. 498 (W.D. Pa. 1969). This judgment was affirmed on appeal, United States v. Martin, 428 F.2d 1140 (3d Cir. 1970), certiorari was denied, 400 U.S. 960, 91 S. Ct. 361, 27 L. Ed. 2d 269 (1970).

 The petitioner in his present motion and two amendments thereto has alleged several grounds for vacating his sentence. We believe that his allegations are without merit, and his motions will be denied.

 In his present motion, the petitioner has asserted that he was mentally incompetent due to his use of drugs at the time of his arraignment, plea, trial and sentencing. The records and files of this case show that on June 16, 1966, seven days after sentencing, a hearing was held on a Motion for Admission to Bail. At this bail hearing, a nurse who was employed at the Allegheny County Jail, where the petitioner was incarcerated, testified that there was never any request from the petitioner for withdrawal treatment (Tr., p. 16).

 At the same hearing the Probation Officer, Andrew B. Buckley, testified that he interviewed the petitioner on the same day and asked him if he was receiving any help for his narcotic addiction. Mr. Buckley stated (Tr., pp. 43-44):

 
"* * * [Martin] indicated that he had cured himself before he came to trial or was committed to the jail. He did admit or state that he was in some pain as a result of an infection on his hand."

 The petitioner never complained to Mr. Buckley of having withdrawal symptoms. In addition, petitioner's then counsel argued at the bail hearing (Tr., p. 46):

 
"The evidence introduced and made available by the Government indicates that he is no longer addicted, and he apparently no longer has this problem, so the rationale of his having to go back into the peddling business isn't a logical conclusion at this stage. In fact, the Government has effectively proven this for us."

 And at page 47 of the transcript, his counsel again stated:

 
"We have substantially proven that he is no longer subject to addiction * * *".

 Although it was our opinion that at the time the petitioner's current motion under § 2255 was filed that the record above mentioned conclusively showed that the petitioner was not entitled to relief, he made strong allegations in his first amendment to the motion. He alleged in this amendment that he received some treatment for drug poisoning, and he named three witnesses that knew that he was under drugs daily while he was out on bail awaiting trial. We also note in passing that the petitioner stated in his amendment that he did not receive drugs or treatment for his narcotic addiction in the county prison.

 We felt that, despite the record, the allegations raised disputed issues of fact and that the petitioner should be afforded an opportunity to be heard. Sanders v. United States, 373 ...


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