The opinion of the court was delivered by: MARSH
The petitioner, Samuel Carter, filed a "Motion to Vacate" sentence imposed on March 12, 1973 at Criminal No. 72-230. The petitioner was found guilty after trial to a jury of bank robbery, 18 U.S.C. § 2113(a); assault and jeopardizing lives during the commission of the robbery, § 2113(d); and killing a person in avoiding or attempting to avoid apprehension for the commission of the robbery, § 2113(e). A sentence of 99 years was imposed. The petitioner took an appeal pro se.
On October 24, 1973, the judgment was affirmed.
The respondent was given an opportunity to show cause why the sentence should not be vacated at a hearing on December 31, 1974.
The petitioner's four reasons to vacate sentence will be discussed seriatim.
Alleged prejudicial comments by the court and prosecutor
The petitioner cites three specific instances where the court allegedly displayed prejudice against him during the trial. (See Tr. p. 211 lines 14 - 17, lines 18 - 23 and p. 306 lines 7 - 9).
In view of the colloquy from which the quotations are taken this contention has no merit. The statements, even though taken out of context, do not show judicial prejudice. Moreover, the colloquy took place in the absence of the jury and could not have had any influence upon its verdict. (Tr. pp. 206 - 207, 304).
The petitioner's reference to remarks of the prosecutor is without merit. There were no instances in the prosecutor's opening statement, comments during the trial or in his summation which were so "inflammatory or prejudicial" as to constitute plain error within the meaning of Rule 52 Fed.R.Crim.P., and in our recollection no objections by the defendant were made to the prosecutor's opening statement or summation.
Petitioner complains that he is without the benefit of a true and complete transcript from which to assign what he alleges is plain error, and cites three cases
of non-compliance with the Court Reporters Act, 28 U.S.C. § 753(b). This complaint is without merit. Court reporters in this district in criminal trials record verbatim the entire proceeding including side-bar conferences, opening statements and summations.
The motion to vacate for the reasons alleged under "A" of the motion is denied.
Failure of the court to observe the provisions of 18 ...