DAVID EARL JOHNSON, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE

5th Cir. | 1978-02-08
No. 77-2867
Before MORGAN, CLARK and TJOF-LAT, Circuit Judges.
567 F.2d 634 Court of Appeals for the Fifth Circuit (1978) Positive Treatment
Cited by 4 cases

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Holding

The court held that the district court's denial of the motion to vacate sentence was improper because it failed to adequately address the claims presented.


Facts & Procedural History

Petitioner sought to vacate his sentence based on claims of double jeopardy, ineffective assistance of counsel, denial of direct appeal, and constitut…

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Opinion of the Court
PER CURIAM:

PER CURIAM:

In this appeal, petitioner questions the district court’s denial of his motion to vacate sentence, under 28 U.S.C. § 2255 (1970), grounded on claims of double jeopardy, ineffective assistance of counsel, the denial of the right to a direct appeal from his conviction, and constitutional violations of the fifth, ninth and fourteenth amendments.. In denying the motion, .the district court merely recited that these claims had previously been presented by petitioner and denied. The court’s order gave no indication whatever as to the manner in which the claims had purportedly been made previously or whether the claims had been denied on the merits. See Rule 9(b), Rules Governing Section 2255 Proceedings for the United States District Courts.

The record presently before us indicates that the double jeopardy issue has never been presented to the district court. As for the remaining claims, it is not clear to us that they have been resolved on the merits. Further proceedings in the district court are therefore indicated and this case is reversed and remanded for that purpose.1

REVERSED AND REMANDED.

. We should add, parenthetically, that to the extent the district court, on remand, may hold that a claim has previously been made and disposed of, the court shall indicate in its order the prior proceedings or other context in which it deems the claim to have been raised and whether or not the claim thus raised received dispositive treatment. See Rule 9(b), Rules Governing Section 2255 Proceedings for the United States District Courts.


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