Robert Grene v. United States

Fifth Circuit

Robert Grene v. United States

448 F.2d 720, 1971 U.S. App. LEXIS 7760

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 4, 1971

Docket71-1324

StatusPublished

Cited by10 cases

This text of 448 F.2d 720 (Robert Grene 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.

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Robert Grene v. United States, 448 F.2d 720, 1971 U.S. App. LEXIS 7760 (5th Cir. 1971).

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Opinion

PER CURIAM:

Grene appeals from the dismissal of his Rule 60(b) 1 motion for relief from judgment. We affirm.

Although his sentence had been completely served, appellant sought to set aside his 1963 federal conviction on the ground that he had been denied his right to a fair trial, in that one of the witnesses called to testify against him later confessed to having given perjured testimony.

The district court correctly held that the appellant’s proper remedy was an application for a writ of error coram nobis, pursuant to 28 U.S.C. § 1651, rather than an independent action to obtain relief under Rule 60(b), Federal Rules of Civil Procedure. Despite the express abolition in that Rule of the extraordinary writ of error coram nobis in federal civil actions, it is still availa *721 ble with respect to criminal convictions under 28 U.S.C. § 1651, United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248; United States v. Norman, 6 Cir., 1968, 391 F.2d 212, cert. denied, 1968, 390 U.S. 1014, 88 S.Ct. 1265, 20 L.Ed.2d 163; Owensby v. United States, 10 Cir., 1965, 353 F.2d 412, cert. denied, 1966, 383 U.S. 962, 86 S.Ct. 1234,16 L.Ed.2d 305.

Accordingly, Grene should have raised his contentions in the sentencing court, the only one which could grant relief in the nature of coram nobis relative to a criminal conviction.

The judgment of the District Court is

Affirmed.

1

. Federal Rules of Civil Procedure.

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PER CURIAM:

Grene appeals from the dismissal of his Rule 60(b) 1 motion for relief from judgment. We affirm.

Although his sentence had been completely served, appellant sought to set aside his 1963 federal conviction on the ground that he had been denied his right to a fair trial, in that one of the witnesses called to testify against him later confessed to having given perjured testimony.

The district court correctly held that the appellant’s proper remedy was an application for a writ of error coram nobis, pursuant to 28 U.S.C. § 1651, rather than an independent action to obtain relief under Rule 60(b), Federal Rules of Civil Procedure. Despite the express abolition in that Rule of the extraordinary writ of error coram nobis in federal civil actions, it is still availa *721 ble with respect to criminal convictions under 28 U.S.C. § 1651, United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248; United States v. Norman, 6 Cir., 1968, 391 F.2d 212, cert. denied, 1968, 390 U.S. 1014, 88 S.Ct. 1265, 20 L.Ed.2d 163; Owensby v. United States, 10 Cir., 1965, 353 F.2d 412, cert. denied, 1966, 383 U.S. 962, 86 S.Ct. 1234,16 L.Ed.2d 305.

Accordingly, Grene should have raised his contentions in the sentencing court, the only one which could grant relief in the nature of coram nobis relative to a criminal conviction.

The judgment of the District Court is

Affirmed.

1

. Federal Rules of Civil Procedure.

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448 F.2d 720, 1971 U.S. App. LEXIS 7760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-grene-v-united-states-ca5-1971.

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