Francis J. Parks v. United States

245 F.2d 706, 1957 U.S. App. LEXIS 3274

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 19, 1957
• Docket: 16530
• Status: Published

Opinion

PER CURIAM.

Subsequent to our remand in the prior appeal of this case, Parks v. United States, 5 Cir., 233 F.2d 321, and pursuant to the mandate of this Court, a hearing was held on petitioner’s motion, 28 U.S.C.A. § 2255, for correction of sentence on the grounds that he was sentenced as a multiple offender under the Boggs Act, 26 U.S.C.A. § 2557(b) (1), since recodified, 26 U.S.C.A. § 7237(a), prior to the required Information first being filed and without having been given an opportunity to affirm or deny his identity with the person previously convicted. At the conclusion of this fair and detailed and full hearing during which evidence was heard on behalf of both parties, including the positive, personal recollection of the prosecutor, the District Clerk, and appellant’s then court-appointed counsel, the Trial Court denied the motion and this appeal followed.

The decisive finding of fact by the Trial Judge that the proper procedure in the respects complained of had been followed before appellant’s sentencing is amply supported by the record before us.

Subsequent to the hearing and entry of the order below, the stenographic transcript notes of the original sentencing, so long unaccountably lost or mislaid, were finally located and, certified by the District Clerk, were included by the Government as a supplemental record on appeal. Since we hold that the denial of the motion was clearly correct on the oral, convincing, credible evidence which the Trial Judge had before him in the hearing on the motion, we are not required to, and do not, decide whether such additional supplementary material might be considered.

The denial of the motion was correct.

It is affirmed.