Roger Marcel Callahan, Appellant, v. United States of America, Appellee, 297 F.2d 79 (5th Cir. 1961)

This is an appeal from an order denying without hearing a motion to set aside a judgment of conviction under 28 U.S. C.A. § 2255.

Appellant alleges that at the time he was tried, he was a fugitive from a state mental institution and was not mentally competent to enter a plea of guilty. It is apparent that the trial court sought to the best of its ability with the appellant before it ready to plead guilty to determine whether appellant was of sound mind. No plea raising the issue of sanity was before the court. Appellant pleaded guilty. Of course, appellant's statement to the trial court that he considered himself of sound mind would be no bar to his actually proving, if such were the case, that he lacked the mental ability to defend himself. By virtue of our opinion in Gregori v. United States, 5th Cir., 243 F.2d 48 and our recent decision in Corbett v. United States, 296 F.2d 131, the judgment of the trial court must be reversed and the case must be remanded for a hearing on the motion for Section 2255 relief.

Judgment is

Reversed.