*1 BROWN, Before JONES Judges. PER CURIAM. under a
Here twice before Section 2255) proceeding, (28 U.S.C.A. § *2 843' calling 750; very for F.2d action nature v was of the highest of rea- 238 F.2d the exercise of the order Smith v. by rehearing Smith, does- Nowhere soned discretion. demonstrating presents that this appeal, for the first Smith succeed third appeal1 con- conclusion substantial basis. from the criminal lacks time an after our entered viction and sentence sought de- All be relief must therefore last remand. nied; af- from is the firmed, application for ha- the denial of hearing, Court set the District On the corpus alterna- affirmed and the beas adjudg sentence of conviction writ of is denied. tive mandamus ing thirty-year prison and then term years. But the a sentence ten Affirmed and denied. successive motions denied the by (a) plea to withdraw his made Judge (dissenting). venue, (c) guilty, (b) waiver waiv (d) and of indictm charged er of counsel I think that offense in the the might punished by death, ent.2 information be information and that the did not confer language By it suitable the jurisdiction on the Court for reasons the precise in the self similar terms and my dissenting stated in in Smith sought rehearing, mandate, we et plain make sentence to that the seq. Assuming jurisdiction, as ruled imprison thirty-years of conviction of majority, thought, the I had and still mandatorily ment was alone to be set think, that the earlier aside, as to the affirmed, have viction should been and waivers, and the District Court was free assigned by that the for reasons reversal to allow such these as the interests of sound, the were not justice might require. The District seq. et finding expressly Court, the that inter justice require, paid understand, ests of did so I As the held that to, scrupulous out, heed and carried process the defendant was denied due precise terms our mandate. Whether of waivers and justice required the interests of further Nevertheless, of sentence.1 precautionary fully As a measure to pre- points, serve Smith’s able court-ap- cause is remanded with to sot directions pointed counsel, simultaneous aside the conviction and sentence to hearing filed below, petition proceed habeas further corpus. This also an from appeal denial of that writ. Additionally, is of the that requests we that treat the main appeal application alternative for writ of withdraw his waiver of his Judge compel mandamus District with our comply mandate. “When controlling it comes ques recognizing 2. Smith, that the Court, 238 tion, however, which the motion presents, page Rives whether under the undisputed facts dissenting, pages 931-93-1, has expressly defendant was denied due process in the adversely ruled to his contentions, pre- taking of waivers and plea, and the im again merely preserve sents it position of sentence the matter stands possible certiorari review. point quite differently, is clear rehearing stated Our 240 F. that judg was not accorded to him, 2d 347: ment appealed from must be reversed. while we are not considering “Further, convinced “This so, because, the- last in the opinion, inordinate speed, the incontinent haste, remanding refer which counsel to as ‘the brought with which the defendants were clarifying, hearing of the court’, order needs up for and the trial moved on government their view does, deference apace, the fact pros- paragraph ecuting agent last is amended j'udgo, and the district be- to read: fore the defendant had made any waivers. opinion was paragraph last PLASTICS, Inc., J. marg Fred TEXAS forth read as set amended to Meyer, Appellants, in.2 *3 guilty taking plea of If in of the Borak, Harry ROTO-LITH, Ltd., and process, as defendant due Appellees. was denied stated, necessa- then this Court’s judge rily, me, the district it seems to of United Court States an had no discretion to entertain justice permitted him to that the ends of Jan. 1958. request with- decline defendant’s plea. court was The district draw such inconsistently proceed “not directed to meaning herewith,” with the district Yet of Court. permission court refused the defendant guilty plea withdraw a of in of this process of due without held was taken beyond my comprehension. is That law.
Further, deceptive sheer and a it is judgment
formality a to set aside valid hold
viction and at the same time judg- guilty upon plea of which that insepa- The two are was based. ment setting judg- of aside rable. necessarily required of conviction ment 3 guilty.2 Upon plea of of the the vacation respect- foregoing grounds, I of each
fully dissent.
purpose
plea
guilty
pri-
cause,
differs
pleaded
“A
of
3.
conferred
or
vately
regard
from a mere admission or
extra
effect
to de-
in chambers
confession;
punishment
is itself
a con
guilt
to be
fendants’
jury
therefor,
Like a verdict of a
both
viction.
connection
required;
not
More is
conclusive.
done and what was
said and
what was
give judgment
nothing
judge
to do but
court has
and undone
unsaid
left
sentence.”
Kercheval
v.
and sen-
the waivers and the
States,
defendant,
47
U.S.
S.Ct.
tencing
274
we are left
in no
583,