287 F.2d 393: Frank Guy, Appellant-movant, v. United States of America, Appellee-respondent
United States Court of Appeals Sixth Circuit. - 287 F.2d 393
March 10, 1961
Elvin Kanter, Cincinnati, Ohio, for appellant.
John W. Morgan, Asst. U.S. Atty., Lexington Ky., Jean L. Auxier, U.S. Atty., on brief, for appellee.
Before MILLER, Chief Judge, and CECIL and WEICK, Circuit Judges.
This cause is in this Court on appeal from an order of the United States District Court, for the Eastern District of Kentucky, London Division. The subject of the appeal is an order of the District Judge denying the motion of the appellant, Frank Guy, to vacate his sentence under Section 2255, Title 28 U.S.C. The motion was denied without a hearing, for the reason that, 'the files and records conclusively show that the defendant is entitled to no relief.'
The appeal was submitted to the Court upon briefs on behalf of the appellant, the brief and appendix of the appellee, and oral arguments of counsel for the parties.
Upon consideration of the issues presented by the appeal, we conclude that the motion raised questions of fact which could only be determined by a hearing in open court, at which the defendant-appellant is entitled to be heard. Howard v. United States, 6 Cir., 186 F.2d 778; Vellky v. United States, 6 Cir., 279 F.2d 697. See also: United States v. McGee, 7 Cir., 242 F.2d 520, judgment vacated and remanded to district court, 355 U.S. 17, 78 S.Ct. 64, 2 L.Ed.2d 23.
It is therefore ordered, adjudged and decreed that the judgment of the District Court be and it is hereby reversed and that the case be remanded to the District Court for further proceedings consistent with this order.