Donald Graham Garrison v. United States

Fifth Circuit

Donald Graham Garrison v. United States

524 F.2d 920, 1975 U.S. App. LEXIS 11477

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 12, 1975

Docket75-3258

StatusPublished

Cited by2 cases

This text of 524 F.2d 920 (Donald Graham Garrison v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Donald Graham Garrison v. United States, 524 F.2d 920, 1975 U.S. App. LEXIS 11477 (5th Cir. 1975).

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Opinion

PER CURIAM:

This appeal is from the denial, without a hearing, of a 28 U.S.C., § 2255 motion to set aside sentence. The sentence is assertedly invalid because previous unconstitutional convictions were taken into account by the sentencing judge in imposing the maximum sentence on a guilty plea, as reflected by the pre-sentence report.

During the imposition of sentence, the trial court remarked (page 8 of the sentencing transcript) “according to this probation report it appears that you really prefer to live in the penitentiary rather than on the outside”.

This indicates that if there were any unconstitutional sentences they were taken into consideration. To settle this there should have been a hearing. See Tucker v. United States, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; United States v. Espinoza, 5 Cir., 1973, 481 F.2d *921 553, 556; United States v. Battaglia, 5 Cir., 1972, 478 F.2d 854; Russo v. United States, 5 Cir., 1972, 470 F.2d 1357, 1358-59; Lipscomb v. Clark, 5 Cir., 1972, 468 F.2d 1321, 1323; Davis v. Wainwright, 5 Cir., 1972, 462 F.2d 1354, 1356.

Reversed and remanded for hearing.

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PER CURIAM:

This appeal is from the denial, without a hearing, of a 28 U.S.C., § 2255 motion to set aside sentence. The sentence is assertedly invalid because previous unconstitutional convictions were taken into account by the sentencing judge in imposing the maximum sentence on a guilty plea, as reflected by the pre-sentence report.

During the imposition of sentence, the trial court remarked (page 8 of the sentencing transcript) “according to this probation report it appears that you really prefer to live in the penitentiary rather than on the outside”.

This indicates that if there were any unconstitutional sentences they were taken into consideration. To settle this there should have been a hearing. See Tucker v. United States, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; United States v. Espinoza, 5 Cir., 1973, 481 F.2d *921 553, 556; United States v. Battaglia, 5 Cir., 1972, 478 F.2d 854; Russo v. United States, 5 Cir., 1972, 470 F.2d 1357, 1358-59; Lipscomb v. Clark, 5 Cir., 1972, 468 F.2d 1321, 1323; Davis v. Wainwright, 5 Cir., 1972, 462 F.2d 1354, 1356.

Reversed and remanded for hearing.

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Bluebook (online)

524 F.2d 920, 1975 U.S. App. LEXIS 11477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donald-graham-garrison-v-united-states-ca5-1975.

Opinion

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