Opinion
No. 15371.
April 26, 1955.
William O. Braecklein, Asst. U.S. Atty., William N. Hamilton, Dallas, Tex., for appellee.
Before RIVES, TUTTLE and CAMERON, Circuit Judges.
On September 18, 1951, the appellant was convicted under an indictment charging him with violations of Sections 2553(a) and 2554(a), Title 26 United States Code, and was sentenced to a term of five years on each count, the terms to run consecutively. On September 26, 1951, due notice of appeal was filed. The record on appeal was never filed in this Court, and on April 10, 1952, the appeal was dismissed for want of prosecution.
Thereafter, on August 27, 1954, appellant filed in the district court a motion to vacate sentence under Section 2255, Title 28 United States Code. Said motion having been denied, notice of appeal was filed on September 21, 1954. On November 17, 1954, this Court denied appellant's motion for leave to appeal in forma pauperis, but permitted him to file typewritten briefs. Appellant evidently misunderstood the effect of that order, for thereafter on December 17, 1954, he paid the filing fee of $25.00 and on January 8, 1955, filed a typewritten brief, but the record on appeal has never been filed. The appellee moves under Rule 39(c) of the Federal Rules of Criminal Procedure, 18 U.S.C. to dismiss the appeal. Since appellant is not represented by counsel and his failure to file the record on appeal is apparently due to his ignorance of legal procedure, we would deny the motion to dismiss if it appeared that the appellant might be entitled to any relief. From a reading and consideration of his brief, however, we are convinced that the matters complained of could be considered only on direct appeal from the original judgment of conviction, and could not, in any event, avail the appellant on this appeal from the denial of his motion to vacate sentence. Appellee's motion is therefore granted, and the appeal is
Dismissed.