United States v. Gerald Wayne Prince

Fifth Circuit

United States v. Gerald Wayne Prince

456 F.2d 1070, 1972 U.S. App. LEXIS 10699

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 16, 1972

Docket71-2387

StatusPublished

Cited by12 cases

This text of 456 F.2d 1070 (United States v. Gerald Wayne Prince) 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

United States v. Gerald Wayne Prince, 456 F.2d 1070, 1972 U.S. App. LEXIS 10699 (5th Cir. 1972).

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Opinion

PER CURIAM:

Gerald Wayne Prince was convicted of violating 18 U.S.C. § 659 for knowingly possessing 566 cases of stolen spark plugs while they were moving in interstate commerce from Toledo, Ohio to Dallas, Texas. On this direct appeal he contends that his conviction should be reversed because of the ineffective assistance of counsel. We affirm.

Our decision in United States v. Knight, 451 F.2d 275 (5th Cir. 1971) furnishes a prelude to this ease. That decision sets forth the background facts and the several contentions of the appellants, Bobby Ray Knight and Bobby Gene Grubbs, who were jointly indicted with Prince. Prince was tried separately and subsequently to the trials of Knight and Grubbs. When the case of Prince came on for trial, he and his counsel stated that they wished to incorporate by reference and to stipulate that the evidence presented to the court in the earlier trial would be submitted to the court as the evidence in the non-jury trial of Prince. Both Prince and his counsel assured the court that they understood and approved the stipulation. Prince was found guilty and sentenced to five years imprisonment.

Prince now contends that the record before us clearly demonstrates that his counsel did not render effective assistance and therefore that the judgment of conviction should be reversed. We disagree with this contention and conclude that Prince can not properly raise the issue of the adequacy of counsel for the first time on direct appeal. The record now before us does not present sufficient facts for a proper resolution and *1071 determination of that issue. The question was not raised in the district court and no facts bearing upon the subject were presented to the trial court. The government has not had an opportunity to present evidence opposing the claims of Prince that his attorney was ineffective. United States v. Hunter, 417 F.2d 296 (5th Cir. 1969); Ortega-Lira v. United States, 406 F.2d 834 (5th Cir. 1969); Moore v. United States, 359 F.2d 852 (5th Cir. 1966).

The judgment of the district court is affirmed without prejudice to the right of Prince to raise the issue of the ineffective assistance of counsel in a proper proceeding pursuant to 28 U.S.C. § 2255.

Judgment affirmed.

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PER CURIAM:

Gerald Wayne Prince was convicted of violating 18 U.S.C. § 659 for knowingly possessing 566 cases of stolen spark plugs while they were moving in interstate commerce from Toledo, Ohio to Dallas, Texas. On this direct appeal he contends that his conviction should be reversed because of the ineffective assistance of counsel. We affirm.

Our decision in United States v. Knight, 451 F.2d 275 (5th Cir. 1971) furnishes a prelude to this ease. That decision sets forth the background facts and the several contentions of the appellants, Bobby Ray Knight and Bobby Gene Grubbs, who were jointly indicted with Prince. Prince was tried separately and subsequently to the trials of Knight and Grubbs. When the case of Prince came on for trial, he and his counsel stated that they wished to incorporate by reference and to stipulate that the evidence presented to the court in the earlier trial would be submitted to the court as the evidence in the non-jury trial of Prince. Both Prince and his counsel assured the court that they understood and approved the stipulation. Prince was found guilty and sentenced to five years imprisonment.

Prince now contends that the record before us clearly demonstrates that his counsel did not render effective assistance and therefore that the judgment of conviction should be reversed. We disagree with this contention and conclude that Prince can not properly raise the issue of the adequacy of counsel for the first time on direct appeal. The record now before us does not present sufficient facts for a proper resolution and *1071 determination of that issue. The question was not raised in the district court and no facts bearing upon the subject were presented to the trial court. The government has not had an opportunity to present evidence opposing the claims of Prince that his attorney was ineffective. United States v. Hunter, 417 F.2d 296 (5th Cir. 1969); Ortega-Lira v. United States, 406 F.2d 834 (5th Cir. 1969); Moore v. United States, 359 F.2d 852 (5th Cir. 1966).

The judgment of the district court is affirmed without prejudice to the right of Prince to raise the issue of the ineffective assistance of counsel in a proper proceeding pursuant to 28 U.S.C. § 2255.

Judgment affirmed.

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456 F.2d 1070, 1972 U.S. App. LEXIS 10699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gerald-wayne-prince-ca5-1972.

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