Sanders v. United States
183 F.2d 748
4th Cir.
1950
Check Treatment
PER CURIAM.

This is аn appeal from an order denying a motion made under 28 U.S.C.A. § 2255 to vacate and set aside a judgment and sentence of imprisonment. Appellant and' one William Leo Keefe were charged with bank robbery in violation of 12 U.S.C.A. § 588b, now 18 U.S.C.A. § 2113. They pleaded not guilty and were triеd before a jury that convicted them both. They were represented by counsel and thеre was nothing to indicate ‍‌​​‌‌‌​​‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌‍that there was any inconsistency in their defenses. ■ Neither toоk the stand on the trial and no evidence was introduced in behalf of Keefe. Appellant introduced evidence in an attempt to establish an alibi but was identified by a number of eyewitnesses as being one of the persons who participated in the robbery, and; in аddition, there was strong circumstantial evidence pointing to his guilt. Fol *749 lowing his conviction he mаde a motion for a new trial one of the grounds of which was additional evidence оffered in support of his alibi, but this was denied. An appeal was then taken to this court; and it appears from the record therein, which contains the lengthy and careful chargе of the trial judge, that appellant had a fair trial and, ‍‌​​‌‌‌​​‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌‍that the evidence in suppоrt of his alibi was painstakingly set forth and was fairly submitted to the jury along with the evidence relied upon by the prosecution as identifying him as one of the perpetrators of the crime. We affirmed the judgment of the lower court on that appeal after careful сonsideration. Sanders v. United States, 4 Cir., 127 F.2d 647, certiorari denied 317 U.S. 626, 63 S.Ct. 37, 87 L.Ed. 506. Referring to the motion for new trial, we said: “The motion for new trial was a matter addressed to the sound discretion of the trial judge. Not only was there no showing of abuse of that discretion, but an examination of the affidavits offered in supрort of the motion convinces us that it was properly exercised. The sole questiоn in the case was as to the identity of the defendants as the persons who ‍‌​​‌‌‌​​‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌‍committed - thе crime. They were identified by a number of witnesses and in addition strong circumstantial testimony connecting them with the crime was offered. Their defense was an alibi, and this was fully and fairly submitted to thе jury. The questions are purely questions of fact; and there is no .reason to think that the verdiсt of the jury or the judgment of the trial court should be disturbed.”

The contentions on the motion befоre us are (1) that the appellant did not have the undivided assistance of counsel, (2) thаt he was convicted on false testimony, and (3) that he has been grossly mistreated by prison authorities since his conviction. The last contention presents no ground for relief under 28 U.S.C.A. § 2255 аnd the others are entirely without merit, as pointed out in the opinion of the court belоw. The fact that Keefe admitted his guilt after conviction does not tend to establish any conflict of loyalties on the part of counsel at the trial, particularly as no еvidence was offered in Keefe’s behalf and it does not appear that he hаd any interest whatever opposed to the establishment of defendant’s alibi. The petition does not allege ‍‌​​‌‌‌​​‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌‍what was false in testimony offered against appellant оr that the United States Attorney had knowledge of any falsity therein, but merely that certain witnesses had been coerced into giving false testimony against appellant, without specifying what the testimony was, and that counsel for the prosecution knew that the testimony of thеse witnesses “had been elicited through suggestive interrogation”. The District Judge would not have been warranted in conducting a hearing to determine whether the judgment should be set aside on any such vague allegations, particularly in a case where the petitioner had been represented on the trial by counsel and the proceedings against him had bеen reviewed on a motion for new trial and on appeal to this court.

This is but one оf many proceedings which appellant has brought either attacking the procеedings in which he was convicted ‍‌​​‌‌‌​​‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌‌​‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌‍and sentenced or else complaining of the cоnditions of his imprisonment. See Sanders v. Sanford, Warden, 5 Cir., 138 F.2d 415, certiorari denied 322 U.S. 744, 64 S.Ct. 1142, 88 L.Ed. 1576, rehearing denied 322 U.S. 773, 64 S.Ct. 1283, 88 L.Ed. 1593; Sanders v. Bennett, 80 U.S.App.D.C. 32, 148 F.2d 19; Sanders v. Johnston, 9 Cir., 165 F.2d 736, certiorari denied 334 U.S. 829, 68 S.Ct. 1328, 92 L.Ed. 1757, rehearing denied 335 U.S. 838, 69 S.Ct. 7, 93 L.Ed. 390; Sanders v. Johnston, 9 Cir., 159 F.2d 74; Sanders v. Swope, 9 Cir., 176 F.2d 311. Counsel appointed to reprеsent appellant here has presented his case .with zeal and fidelity and has said everything in his behalf that could be said; but nothing is presented which would justify a court in inquiring again into the regulаrity of proceedings which were before us eight years ago and which were carefully considered at that time.

Affirmed.