James W. Brewen, Appellant, v. United States of America, Appellee, 396 F.2d 350 (5th Cir. 1968)

Annotate this Case
U.S. Court of Appeals for the Fifth Circuit - 396 F.2d 350 (5th Cir. 1968)

June 14, 1968

James W. Brewen, pro se.

B. H. Timmins, Jr., Asst. U. S. Atty., Dallas, Tex., for appellee.

Before THORNBERRY and SIMPSON, Circuit Judges, and SUTTLE, District Judge.


This appeal is from the denial of a motion to vacate, 28 U.S.C. § 2255. On a previous appeal, we reversed and remanded the case with the direction that there be a further evidentiary hearing with appellant present. Brewen v. United States, 5th Cir. 1967, 375 F.2d 285. At the hearing, appellant, represented by court-appointed counsel, was present and testified. At the previous hearing, his former retained counsel had testified.

The district court held that appellant had not been, as he contended, indigent during the time in October, 1962, in which notice could have been filed for a direct appeal. It further held that his retained counsel, under the circumstances of the case, had no duty to advise him of his right to appeal or of the time limits for appeal and that the trial court had no such duty. Cf. Rule 32(a) (2), Fed. R. Crim. P., as amended effective July 1, 1966. A thorough study of the record in this case leads us to the conclusion that these findings are not clearly erroneous.