George Harrison Flynn v. United States

404 F.2d 935

• Court: Court of Appeals for the Third Circuit
• Decided: October 23, 1968
• Docket: 17244
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM.

This appeal challenges a November 30, 1967, District Court order denying an application to vacate or otherwise correct, pursuant to F.R.Crim.P. 35 or 28 U.S.C. § 2255, a 15-year sentence entered September 23, 1966, on pleas of guilty to two counts of an indictment charging violation of 18 U.S.C. § 2113(a). This District Court order recited that appellant had filed a prior application (Civil No. 172-67) which was “substantially the same” and that this order was being entered for “the reasons set forth” in the Memorandum filed in that prior action on April 20, 1967, when the prior application was denied. 1

After careful examination of the record and the briefs, the order of November 30, 1967, will be affirmed for the reasons stated by Senior Judge Madden in his Memorandum of April 20, 1967 (Civil No. 172-67, D.N.J.). 2

1 . It is noted that 28 U.S.C. § 2255 contains this language:

“The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”

2 . Since the length of the sentence was less than that permitted on each of the two counts of the indictment to which the pleas of guilty were entered, any deficiency in the court’s not referring at the time of pleas to the intent required under Count I of the indictment did not make the sentence illegal. See Green v. United States, 365 U.S. 301, 306, 81 S.Ct. 653, 656, 5 L.Ed.2d 670, rehearing denied 365 U.S. 890, 81 S.Ct. 1024, 6 L.Ed.2d 201 (1961), where the court said:

“Plainly enough, the intention of the district judge was to impose the maximum sentence of twenty-five years for aggravated bank robbery, and the formal defect in his procedure should not vitiate his considered judgment.”

The inadvertent reference in the 4/20/67 Memorandum to the offense in Count II as being a violation of 18 U.S.C. § 2113 (b) (rather than § 2113(a)) was at the most harmless error.