Gasper Joseph Gulizio, Appellant, v. United States of America, Appellee, 311 F.2d 639 (2d Cir. 1962)

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US Court of Appeals for the Second Circuit - 311 F.2d 639 (2d Cir. 1962) Argued December 11, 1962
Decided December 17, 1962

Anthony F. Marra, The Legal Aid Society, New York City (Leon B. Polsky, New York City, of counsel), for appellant.

Joseph P. Hoey, U. S. Atty., Eastern Dist. of New York (Stephen Lowey, Asst. U. S. Atty., of counsel), for appellee.

Before WATERMAN, SMITH and HAYS, Circuit Judges.

PER CURIAM.


Appellant pleaded guilty to a charge that in violation of 18 U.S.C. § 659 and 18 U.S.C. § 2 he possessed stolen property. When sentenced upon this plea the sentencing judge failed to ask appellant if he had anything to say before sentence was pronounced, as required by Rule 32 (a) Fed.R.Crim.Proc. Appellant, however, at the time of sentence was represented by counsel and his counsel spoke in his behalf. Appellant, pursuant to 28 U.S.C. § 2255 moved to vacate his sentence. The district court denied the motion and denied a motion for reargument, but granted leave to appeal in forma pauperis.

We affirm, Hill v. United States, 368 U.S. 424, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962); Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); United States v. Donovan (Andrews), 301 F.2d 376 (2 Cir. 1962), petitions for writs of cert. granted, Oct. 8, 1962, Andrews v. United States, 371 U.S. 812, 83 S. Ct. 57. (1962) However, this affirmance is without prejudice to the appellant if, in the event of a change of circumstances, he shall be advised to bring another petition pursuant to 28 U.S.C. § 2255.