United States of America, Plaintiff-appellee, v. Charles Robert O'malley, Defendant-appellant, 311 F.2d 788 (6th Cir. 1963)

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US Court of Appeals for the Sixth Circuit - 311 F.2d 788 (6th Cir. 1963) January 4, 1963

Jerry F. Venn (Court Appointed), Cincinnati, Ohio, for appellant.

Robert A. Bell, Asst. U. S. Atty., Columbus, Ohio, Joseph P. Kinneary, U. S. Atty., Columbus, Ohio, on brief, for appellee.

Before O'SULLIVAN, Circuit Judge, and TAYLOR and FREEMAN, District Judges.

On August 3, 1958, defendant-appellant, Charles Robert O'Malley, was convicted of bank robbery in a jury trial at which he was represented by counsel of his own choosing. He was sentenced to imprisonment for 25 years. He took no appeal from such conviction. On January 27, 1960, his motion to vacate the above sentence (§ 2255, Title 28 U.S.C. A.) was denied by the District Judge. Such denial was affirmed by this Court on January 13, 1961. O'Malley v. United States, 6 Cir., 285 F.2d 733. The primary basis for his aforesaid motion was his claim that his counsel was incompetent and had made numerous mistakes at the trial. His claims in this regard are reviewed in our opinion. We need not repeat them here.

Following our aforesaid decision, defendant-appellant filed a petition in the District Court for a writ of error coram nobis. His petition was denied and, aided by appointed counsel, he has appealed from such denial. His present petition repeats many of the charges of inadequate representation at his trial, adds some new details and concludes that such claimed inadequate representation establishes that there was collusion between his attorney and the U. S. District Attorney who prosecuted the case against him. O'Malley's allegations of collusion and conspiracy are conclusional and add nothing of substance to what was considered and disposed of by us in his former appeal. The District Judge was correct in denying the sought for writ of error coram nobis. The allegations in the petition are not factual, and hence are not sufficient to call for a hearing thereon.

Therefore, it is ordered that the judgment of the District Court be, and it is, hereby affirmed.