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UNITED STATES v. GRIFFIN

January 13, 1978

UNITED STATES OF AMERICA
v.
JOHN W. GRIFFIN



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 On October 10, 1977, we denied defendant John W. Griffin's motion to vacate sentence, which was filed on March 29, 1977, pursuant to 28 U.S.C. § 2255. Thereafter, Griffin filed a notice of appeal to the Third Circuit Court of Appeals on December 21, 1977. We set forth in this opinion our reasons in support of our denial.

 Griffin is currently serving a term of incarceration, which we imposed on July 23, 1975, after a jury had found Griffin (along with two co-defendants, John W. Clark and William Christian), guilty of four counts charging conspiracy, 18 U.S.C. § 371, and aiding and abetting violations of the federal bank robbery statute, 18 U.S.C. §§ 2, 2113.

 On a prior occasion, we considered and denied Griffin's post-trial motions, see, United States v. Clark, 398 F. Supp. 341 (E.D.Pa. 1976); his conviction has been upheld by the Third Circuit Court of Appeals, 532 F.2d 746 (3rd Cir. 1976). In his § 2255 motion, Griffin presented us with another issue, by claiming that the sentence which we imposed was an illegal one. The claimed illegality was based upon his assertion that we improperly imposed two consecutive twenty-year terms for a single violation of the bank robbery statute.

 We carefully considered the allegations set forth in Griffin's § 2255 motion, as well as the material submitted by the Government in answer to that motion. We also reviewed the transcript of the sentencing proceeding, which was held on July 23, 1975, and the Judgment and Commitment Order which was filed the same date. Based upon our review of this record, we were thoroughly satisfied that the question of the legality of Griffin's sentence -- the only question raised by the instant § 2255 motion -- could be resolved without any need for further evidentiary hearings or proceedings.

 We also concluded that Griffin's claim of illegality in his sentence, was groundless. Given the record at sentencing and the governing case law, the allegations of illegality could not be supported in this case. Accordingly, Griffin's § 2255 motion was dismissed.

 I. The Sentence Imposed

 John Griffin was convicted on four counts of a ten count indictment; the jury found him, as well as his codefendants Clark and Christian, guilty as to Counts I, III, V, and IX. These four counts charged violations of federal conspiracy, aiding and abetting, and bank robbery statutes, as follows: Count I, conspiracy to violate 18 U.S.C. § 2113(a), in violation of 18 U.S.C. § 371; Count III, aiding and abetting codefendant Richard Dabney's unlawful taking of money from a federally insured bank, in violation of 18 U.S.C. §§ 2(a), 2113(a); Count V, aiding and abetting codefendant Richard Dabney's unlawful entry into the bank, in violation of 18 U.S.C. §§ 2(a), 2113(a); and Count IX, aiding and abetting codefendant Dabney's taking of a hostage while committing the offense of bank robbery, in violation of 18 U.S.C. §§ 2(a), 2113(e).

 At the sentencing hearing of July 23, 1975, we sentenced Griffin to serve five years imprisonment on Count I (the conspiracy count), concurrent with a general sentence of forty years imprisonment on Counts III, V, and IX. The record is abundantly clear that this sentence was in fact the one which we imposed. During the hearing, we stated the following:

 
With respect to Criminal Indictment 73-471, in the matter of John W. Griffin, it is adjudged that on Count One the defendant is sentenced and is hereby committed to the custody of the Attorney General or his authorized representative for a term of five years to run concurrently with the sentence to be imposed with respect to Counts Three, Five and Nine of that indictment.
 
It is further ordered that on the merged Counts Three, Five and Nine of that indictment the defendant, John W. Griffin, is sentenced to the custody of the Attorney General or his authorized representative and committed to that custody for imprisonment for a term of 40 years, said period to constitute a general sentence on the merged Counts Three, Five and Nine to run concurrently with the period of imprisonment imposed in Count One.

 Transcript of Proceedings, July 23, 1975, at p. 26. It was this sentence which was set forth in the Judgment and Commitment Order of July 23, 1975, in almost identical language:

 
The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of Five (5) Years on Count 1 to run concurrently with the period of ...

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