Opinion
No. 71-1935.
September 3, 1971.
James C. Martin, Jr., pro se.
Robert W. Rust, U.S. Atty., Miami, Fla., for respondent-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
This appeal is taken from an order of the district court denying the motion of a federal prisoner to vacate sentence pursuant to 28 U.S.C. § 2255.
It is appropriate to dispose of this pro se case summarily, pursuant to this Court's local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.
The court denied appellant's motions for a trial transcript and for § 2255 relief. There was a contested issue of fact as to whether law enforcement officers who appeared in a lineup with appellant, in which lineup appellant was identified by a witness, were known to the witness to be law enforcement officers and thus not persons suspected of the crime involved, with the result that the lineup was tainted. The trial court decided this contested issue on the basis of affidavits, which it may not do. Pike v. United States, 409 F.2d 499, 501 (5th Cir. 1969); Machibroda v. United States, 368 U.S. 487, 494, 82 S.Ct. 510, 7 L.Ed.2d 473, 478 (1963).
Vacated and remanded.