James Delbert Smith v. United States

454 F.2d 1330, 1972 U.S. App. LEXIS 11608

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 1972
• Docket: 26176
• Status: Published

Opinions

PER CURIAM:

This is the second time that Smith has come to this court on appeal from a District Court’s denial without a hearing of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The facts relating to his passage through the courts prior to filing the instant motion are set out in full in our first opinion. Smith v. United States, 409 F.2d 1188, 1189 (9th Cir. 1968). There is no need to restate them here.

In the instant action, Smith raises ten claims, five of which were made in his previous case. We affirm the District Court’s denial of all claims.

1. In Smith’s original § 2255 motion, he claimed that his rights under Rule 48(a), Fed.Rules Crim.Proc., were abridged by a dismissal of a count against him at trial without his permission. The district judge dismissed the claim without a hearing, finding it to be frivolous, since absolutely no prejudice was shown. The judge need not have entertained a claim previously determined where, as here, he found that the ends of justice would not be served. “Prior determination” usually requires a “prior hearing.” However, a “determination” may also result, absent a hearing, where the face of the record conclusively shows that the claim lacks merit. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Moreover, the district judge here specifically found that the ends of justice would not be served by giving a rehearing. Gomez v. United States, 396 F.2d 323 (9th Cir. 1968).

2. The district judge below properly dismissed Smith’s claim that his counsel Was ineffective. The prior proceeding under § 2255 determined the merits of this claim against Smith.

3. The conflict of interests claim was properly dismissed for the same reason.

4. The improper substitution of counsel claim was properly dismissed for the same reason.

5. The claims regarding the parole violation warrant were properly dismissed for the same reason.

6. Smith’s new claim of collusion between his attorney and the prosecutor was baldly conclusionary, justifying dismissal under Diamond v. United States, 432 F.2d 35 (9th Cir. 1970).

7. Smith’s claims of “broken promises” by the prosecutor were too vague, general and conclusionary to require a hearing. Diamond v. United States, supra, 432 F.2d at 39-40. Without specific details, the District Court below properly refused to reach the merits of this contention. Cf. Sasser v. United States, 452 F.2d 1104 (9th Cir. Jan. 3, 1972).

8. The claim of double jeopardy is conclusively meritless on its face and was properly dismissed. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941); See United States v. Doyle, 348 F.2d 715, 720-721 (2d Cir. 1965).

9. The claim based on an alleged right of inspection of a presentence report is conclusively meritless on its face and was properly dismissed.

10. Smith’s claim that his presentence report contained gross and pervasive errors is baldly eonelusionary, general and vague. Summary dismissal was proper.

Affirmed.