Peter Joseph Kelly v. United States

Fifth Circuit

Peter Joseph Kelly v. United States

350 F.2d 398, 1965 U.S. App. LEXIS 4627

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 17, 1965

Docket21791_1

StatusPublished

Cited by6 cases

This text of 350 F.2d 398 (Peter Joseph Kelly 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

Peter Joseph Kelly v. United States, 350 F.2d 398, 1965 U.S. App. LEXIS 4627 (5th Cir. 1965).

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Opinion

PER CURIAM.

In October 1963, appellant was convicted of violating 18 U.S.C.A. § 2312. No appeal was taken. Appellant now seeks to collaterally attack that conviction by way of a proceeding under 28 U.S.C.A. § 2255. The errors assigned concern the admissibility of certain evidence, and whether the proof of intent was sufficient. These should have been assigned and considered on direct appeal. Larson v. United States, 5 Cir., 1960, 275 F.2d 673, cert. den., 363 U.S. 849, 80 S.Ct. 1627, 4 L.Ed.2d 1732, rehearing den., 364 U.S. 858, 81 S.Ct. 38, 5 L.Ed.2d 44. Thus the District Court properly denied relief.

The District Court also properly denied what appears to be a contention of misconduct and incompetence of counsel with respect to representation in the trial court amounting to a breach of legal duty. The factual basis offered was inadequate to sustain such a contention. Alexander v. United States, 5 Cir., 1961, 290 F.2d 252; and Kennedy v. United States, 5 Cir., 1958, 259 F.2d 883, cert. den., 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982.

Although appellant was represented at trial by counsel of his own choosing, he seems to make some effort in this court, through his reply brief, to take the position that he was denied the opportunity to appeal his conviction because of indigency and the improper conduct of his counsel. This is a factual issue which must first be presented to the District Court. The affirmance here is without prejudice to the right of appellant to raise this question on a subsequent § 2255 proceeding should he desire to pursue that course,

Affirmed.

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PER CURIAM.

In October 1963, appellant was convicted of violating 18 U.S.C.A. § 2312. No appeal was taken. Appellant now seeks to collaterally attack that conviction by way of a proceeding under 28 U.S.C.A. § 2255. The errors assigned concern the admissibility of certain evidence, and whether the proof of intent was sufficient. These should have been assigned and considered on direct appeal. Larson v. United States, 5 Cir., 1960, 275 F.2d 673, cert. den., 363 U.S. 849, 80 S.Ct. 1627, 4 L.Ed.2d 1732, rehearing den., 364 U.S. 858, 81 S.Ct. 38, 5 L.Ed.2d 44. Thus the District Court properly denied relief.

The District Court also properly denied what appears to be a contention of misconduct and incompetence of counsel with respect to representation in the trial court amounting to a breach of legal duty. The factual basis offered was inadequate to sustain such a contention. Alexander v. United States, 5 Cir., 1961, 290 F.2d 252; and Kennedy v. United States, 5 Cir., 1958, 259 F.2d 883, cert. den., 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982.

Although appellant was represented at trial by counsel of his own choosing, he seems to make some effort in this court, through his reply brief, to take the position that he was denied the opportunity to appeal his conviction because of indigency and the improper conduct of his counsel. This is a factual issue which must first be presented to the District Court. The affirmance here is without prejudice to the right of appellant to raise this question on a subsequent § 2255 proceeding should he desire to pursue that course,

Affirmed.

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350 F.2d 398, 1965 U.S. App. LEXIS 4627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peter-joseph-kelly-v-united-states-ca5-1965.

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