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Donald Graham Garrison v. United States

Donald Graham GARRISON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee

Garrison v. United States, 524 F.2d 920 (5th Cir. 1975)
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Court
Court of Appeals for the Fifth Circuit · U.S. Courts of Appeals
Decided
December 12, 1975
Docket
No. 75-3258
Judges
Coleman, Ainsworth, Simpson
Citations
524 F.2d 9201975 U.S. App. LEXIS 11477

Opinion — Per Curiam

PER CURIAM:

This appeal is from the denial, without a hearing, of a 28 U.S.C., § 2255 motion to set aside sentence. The sentence is assertedly invalid because previous unconstitutional convictions were taken into account by the sentencing judge in imposing the maximum sentence on a guilty plea, as reflected by the pre-sentence report.

During the imposition of sentence, the trial court remarked (page 8 of the sentencing transcript) “according to this probation report it appears that you really prefer to live in the penitentiary rather than on the outside”.

This indicates that if there were any unconstitutional sentences they were taken into consideration. To settle this there should have been a hearing.

See Tucker v. United States, 1972, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 ;

United States v. Espinoza, 5 Cir., 1973, 481 F.2d *921 553, 556;

United States v. Battaglia, 5 Cir., 1972, 478 F.2d 854 ;

Russo v. United States, 5 Cir., 1972, 470 F.2d 1357, 1358-59 ;

Lipscomb v. Clark, 5 Cir., 1972, 468 F.2d 1321, 1323 ;

Davis v. Wainwright, 5 Cir., 1972, 462 F.2d 1354, 1356 .

Reversed and remanded for hearing.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1978: 119782026peak 1978 · 1

Relies on it most ⓘ

  1. Lawrence Leroy Farrow v. United States580 F.2d 1339 (9th Cir. 1978)

Most recent

  1. Lawrence Leroy Farrow v. United States580 F.2d 1339 (9th Cir. 1978)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

DepthCaseCited by
United States v. Tucker, 404 U.S. 443 (1972) 2,080
Lipscomb v. J, 468 F.2d 1321 (5th Cir. 1972) 56
United States v. Battaglia, 478 F.2d 854 (5th Cir. 1972) 23
Broward Davis v. Wainwright, 462 F.2d 1354 (5th Cir. 1972) 16
Russo v. The United States, 470 F.2d 1357 (5th Cir. 1972) 13

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