United States v. Joseph Carey, A/K/A James Francis Smith

Fifth Circuit

United States v. Joseph Carey, A/K/A James Francis Smith

571 F.2d 1343, 1978 U.S. App. LEXIS 11484

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 26, 1978

Docket77-3376

StatusPublished

Cited by1 cases

This text of 571 F.2d 1343 (United States v. Joseph Carey, A/K/A James Francis Smith) 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. Joseph Carey, A/K/A James Francis Smith, 571 F.2d 1343, 1978 U.S. App. LEXIS 11484 (5th Cir. 1978).

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Opinion

PER CURIAM:

James Smith alias Joseph Carey, etc., appeals from the district court denial of his Petition for Writ of Error Coram Nobis. Appellant’s collateral attack of his expired twenty year sentence on a 1948 guilty plea is premised upon three assertions; that appellant did not knowingly and voluntarily waive his right to counsel; that the convicting court failed to advise appellant of the nature and elements of the charged crimes; and that this allegedly unlawful prior conviction adversely affected appellant when sentenced on his present Pennsylvania state conviction. We affirm the district court’s denial of the petition.

Appellant, using the name Joseph Carey, signed a waiver of counsel form in regard to the conviction in question. The proceedings in the district court, while not recorded in their entirety, state: “Constitutional rights explained; waivers of assistance of counsel signed; indictment read and explained; pleas of ‘Guilty’ entered. Testimony of Agent.” Additionally, the judgment indicates that appellant was advised of his constitutional right to have counsel appointed. Appellant incorrectly asserts that there is proof “on the record” that he was not properly advised of the nature and elements of the charged crimes. There is no such proof on the record. Moreover, the proceedings as recorded state that the indictment was read and explained.

Appellant’s claim that his waiver of counsel was involuntary is contradicted by the record, as noted above. Additionally, as we have previously stated:

When a petitioner simply contends that his pre-Boykin plea was not understanding^ entered, and offers no allegations to support that conclusion, as in the case sub judice, the claim is insufficient to necessitate federal habeas consideration. Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388.

Bryant v. Elliot, 5 Cir. 1973, 472 F.2d 572; see also Cunningham v. Estelle, 5 Cir. 1976, 536 F.2d 82.

Accordingly, this collateral attack on appellant’s expired conviction must fail.

AFFIRMED.

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PER CURIAM:

James Smith alias Joseph Carey, etc., appeals from the district court denial of his Petition for Writ of Error Coram Nobis. Appellant’s collateral attack of his expired twenty year sentence on a 1948 guilty plea is premised upon three assertions; that appellant did not knowingly and voluntarily waive his right to counsel; that the convicting court failed to advise appellant of the nature and elements of the charged crimes; and that this allegedly unlawful prior conviction adversely affected appellant when sentenced on his present Pennsylvania state conviction. We affirm the district court’s denial of the petition.

Appellant, using the name Joseph Carey, signed a waiver of counsel form in regard to the conviction in question. The proceedings in the district court, while not recorded in their entirety, state: “Constitutional rights explained; waivers of assistance of counsel signed; indictment read and explained; pleas of ‘Guilty’ entered. Testimony of Agent.” Additionally, the judgment indicates that appellant was advised of his constitutional right to have counsel appointed. Appellant incorrectly asserts that there is proof “on the record” that he was not properly advised of the nature and elements of the charged crimes. There is no such proof on the record. Moreover, the proceedings as recorded state that the indictment was read and explained.

Appellant’s claim that his waiver of counsel was involuntary is contradicted by the record, as noted above. Additionally, as we have previously stated:

When a petitioner simply contends that his pre-Boykin plea was not understanding^ entered, and offers no allegations to support that conclusion, as in the case sub judice, the claim is insufficient to necessitate federal habeas consideration. Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388.

Bryant v. Elliot, 5 Cir. 1973, 472 F.2d 572; see also Cunningham v. Estelle, 5 Cir. 1976, 536 F.2d 82.

Accordingly, this collateral attack on appellant’s expired conviction must fail.

AFFIRMED.

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571 F.2d 1343, 1978 U.S. App. LEXIS 11484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-carey-aka-james-francis-smith-ca5-1978.

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