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SMITH v. UNITED STATES

June 2, 1972

Charles Jay SMITH
v.
UNITED STATES of America


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

Marsh, Chief Judge.

 The petitioner, Charles Jay Smith, along with two codefendants (Archie and Washington), was convicted of bank robbery, 18 U.S.C. § 2113(a). A third codefendant (Parrotte) was acquitted. *fn1" The petitioner has moved to vacate sentence pursuant to 28 U.S.C. § 2255. The principal ground in support of the motion to vacate is the usual accusation, after conviction, of ineffective assistance of counsel.

 Petitioner requests a hearing upon his motion under § 2255. The statute requires no hearing where "the files and records of the case conclusively show that the prisoner is entitled to no relief * * *." The transcripts and the files in this case are sufficient to test the petitioner's contentions. Thus, a hearing is not required. It is our opinion that the motion to vacate should be denied.

 The petitioner alleges, and the record shows, that he apprised the court of the following matters prior to trial: *fn2"

 
1. That he sought to secure counsel of his own choice and had financial means to do so.
 
2. That appointed counsel was unprepared to give effective defense.
 
3. That appointed counsel had no prior experience in criminal procedures in federal court.
 
4. That the petitioner would consider defending himself and the court gave him 24 hours to accept counsel or represent himself with the assistance of the same counsel.

 The record discloses that the petitioner's appointed counsel was fully prepared and had adequate time to and did interview petitioner, his witnesses, and the prosecuting authorities. He prepared motions, researched the law and conferred with the attorneys for the codefendants. His voucher certified that he spent 28 hours in this regard, including 13 hours consumed by interviews. In behalf of petitioner, he filed a motion for discovery and inspection and a motion for bill of particulars, which were effectively presented and argued. Also, he made a motion to suppress codefendant Parrotte's confession; cross-examined prosecution witnesses who testified adversely to petitioner; and orally moved that the government produce exculpatory evidence and witnesses as required by United States v. Brady (R., pp. 70-71). He opened the case for petitioner and examined three alibi witnesses and the petitioner; presented a point for charge; made motions for judgment of acquittal at the close of the prosecution's evidence, at the close of all the evidence, and after verdict; made summation on behalf of petitioner; filed a motion for a new trial assigning thirteen grounds therefor; and prosecuted the appeal. In addition, appointed counsel represented petitioner at a lineup on April 15, 1970, and at his arraignment on April 16, 1970, before Judge Miller.

 It was brought to my attention that petitioner had hepatitis when arrested on March 17, 1970 (R., p. 57). I instituted an investigation and it appeared that after his arrest, petitioner was sent to the jail hospital by the jail nurse for hepatitis (R., p. 60), but had been released on March 23rd. The guard (Bronyak) who had been escorting him to the federal court hearings on March 23rd, April 15th, 16th, and 22nd, stated that he had been told that petitioner's condition was not infectious (R., p. 62). Notwithstanding, I ordered the Assistant United States Attorney to investigate (R., pp. 62, 66). Accordingly, F.B.I. Agent Bria investigated and reported that petitioner was "no longer in a communicable state as far as the disease of hepatitis goes" (R., pp. 68-69).

 Allegations of fact which appear undisputed in the record with respect to the petitioner's claim of ineffective ...


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