Donald Graham Garrison v. United States
Donald Graham GARRISON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee
Opinion
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.
Cited by 1 case
View all citing references →Relies on it most ⓘ
Most recent
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.