United States of America, Plaintiff-appellee, v. Alfred Embarrato, Defendant-appellant, 253 F.2d 947 (2d Cir. 1958)

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U.S. Court of Appeals for the Second Circuit - 253 F.2d 947 (2d Cir. 1958) Argued March 26, 1958
Decided April 17, 1958

Jacob W. Friedman, New York City, for defendant-appellant.

Marie L. McCann, Asst. U. S. Atty., E.D.N.Y., Brooklyn, N. Y. (Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y., on the brief), for plaintiff-appellee.

Before CLARK, Chief Judge, L. HAND, Circuit Judge, and DIMOCK, District Judge.


Petitioner, being sentenced in 1955 to the minimum mandatory term of five years as a second offender for violation of the narcotics laws, now seeks to vacate his first conviction had on September 9, 1935. On his petition under 28 U.S.C. § 1651(a) the court accorded him a full hearing of the issue as to his representation by counsel and eventually found that he had been duly represented at the time of his sentence on plea of guilt. There was sharply conflicting evidence, from the defendant himself, the lawyer in question, and a deputy court clerk, together with certain records — all as discussed in Judge Rayfiel's opinion, D.C. E.D.N.Y., 151 F. Supp. 160. The judge accepted the testimony of the deputy clerk. We find nothing clearly erroneous in this judgment on the facts and accordingly affirm. United States v. Di Martini, 2 Cir., 219 F.2d 807; and see United States v. Di Martini, D.C.S.D.N.Y., 120 F. Supp. 907.