524 F.2d 920: Donald Graham Garrison, Petitioner-appellant, v. United States of America, Respondent-appellee

United States Court of Appeals, Fifth Circuit. - 524 F.2d 920

Dec. 12, 1975


Donald Graham Garrison, pro se.

Dennis R. Lewis, Asst. U. S. Atty., Roby Hadden, U. S. Atty., Beaumont, Tex., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.

PER CURIAM:

1

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.

2

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".

3

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 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.

4

Reversed and remanded for hearing.