Before HASTINGS, Chief Judge, and SCHNACKENBERG and KILEY, Circuit Judges.
This is an appeal from an order denying a motion to vacate sentence pursuant to Title 28 U.S.C.A. § 2255. The motion was filed by Leslie Levi Morris (petitioner-appellant) in the United States District Court for the Northern District of Illinois. The motion was denied, without a hearing, by an order entered on December 26, 1961.
In its written order of denial, the district court did not set out its reasons for so ruling other than to state "that the grounds advanced by petitioner do not warrant the granting of the motion." It further stated that "[from] the motion, the file and the record of this case it appears conclusively that the petitioner here is entitled to no relief and that no hearing should be had on this motion."
The record before us shows that Morris was charged with violation of Federal Narcotics Laws in an 8-count indictment filed January 14, 1958. He waived a trial by jury and in a court trial was found guilty on three counts. He was shown to have suffered a prior conviction and on that showing was sentenced to a term of ten years imprisonment on each count, the sentences to run concurrently.
Subsequently, on appeal to this court, the judgment of conviction was reversed on the grounds that the trial court had refused to "find the facts specially," on request of defendant, as commanded by Rule 23(c), Federal Rules of Criminal Procedure, 18 U.S.C.A. In this prior appeal, the Government confessed error. Accordingly, the cause was ordered remanded to the district court for a new trial. United States v. Morris, 7 Cir., 263 F.2d 594 (1959).
On remand, Morris was tried a second time. Following a trial by jury, beginning October 6, 1959 and ending October 13, 1959, he was again found guilty on the same three counts of the indictment, and again received concurrent sentences of ten years on each count. He did not appeal this second conviction. He was incarcerated in the federal penitentiary at Leavenworth, Kansas.
On May 24, 1961, Morris filed in the district court an "Application for Writ of 2255 of Title 28 U.S.C.A." and "Petition for Writ of Habeas Corpus Ad Testificandum." On June 5, 1961, he filed a further document entitled "Motion in Support of Motion to Vacate Illegal Judgment Pursuant to 2255 of Title 28 U.S.C.A." On June 29, 1961, he filed a further "Motion in Support, and Motion to Show Legal Cause."
In response thereto, on July 6, 1961, the United States Attorney filed the Government's "Answer to Petitioner's Motions to Vacate Sentence Pursuant to Sec. 2255, Title 28, U.S.C."
On July 17, 1961, Morris filed "Petitioner's Answer to the Government's Opposition Pursuant to Section 2255, Title 28 U.S.C." On August 18, 1961, he filed a further document entitled "Application for Writ of Habeas Corpus Ad-Curiam."
All the foregoing post-conviction papers filed in the district court quite clearly indicate that they were prepared by Morris pro se. He was not represented by counsel. There is nothing in the record to indicate that he ever requested appointment of counsel.
Following the denial of his several motions below, all of which the district court treated as a motion to vacate sentence pursuant to 28 U.S.C.A. § 2255, Morris filed a timely notice of appeal therefrom. He was granted leave to appeal in forma pauperis and the district court further ordered that the record on appeal be prepared without cost to Morris.
After the instant appeal was docketed in this court, we granted leave for Morris to proceed in forma pauperis. We appointed John D. Bixler, a reputable member of the Chicago, Illinois Bar, to represent him in this appeal.
Here we pause to note from the record that Morris filed his notice of appeal on January 25, 1962. Copies of such notice of appeal were served on the Government by mail on April 13, 1962. The record in ...