Franklin Everett Branamen, Appellant, v. United States of America, Appellee, 430 F.2d 1179 (9th Cir. 1970)

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U.S. Court of Appeals for the Ninth Circuit - 430 F.2d 1179 (9th Cir. 1970) October 5, 1970

Appeal from the United States District Court for the Northern District of California; Stanley A. Weigel, Judge.

Franklin Everett Branamen, in pro. per.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, MERRILL and KOELSCH, Circuit Judges.

PER CURIAM:


In this proceeding under 28 U.S.C. § 2255 the district attorney confesses error in the failure of the district court, pursuant to 18 U.S.C. § 4244, to determine the competency of Branamen, following arrest and prior to imposition of sentence. Morris v. United States, 414 F.2d 258 (9th Cir. 1969).

The matter should be remanded to the district court with directions to proceed as provided in said Section 4244; if that court determines that Branamen was mentally incompetent when entering his plea, the judgment of conviction and sentence must be vacated and further proceedings taken; otherwise, the judgment and sentence shall stand and this proceeding be dismissed.

It is so ordered.