Opinion
No. 13453.
December 18, 1961.
Willie Sinks, in pro. per., Richard J. Flynn, Chicago, Ill., for appellant.
James P. O'Brien, U.S. Atty., John Peter Lulinski, Asst. U.S. Atty., Chicago, Ill., for appellee.
Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges.
Petitioner-appellant, Willie Sinks, appeals from an order of the District Court denying vacation of a judgment and sentence previously imposed following a jury trial in which petitioner was found guilty of a violation of 21 U.S.C.A. § 174. The record before us does not contain a motion to vacate the judgment or sentence. Petitioner claims to have mailed a motion, made pursuant to 28 U.S.C.A. § 2255, to the District Court for filing but the record does not disclose that it was filed. We would dismiss the appeal because of the patent inadequacy of the record before us to afford a basis for review of the order appealed from but for the fact that both petitioner and the government concede that there is no record that such motion was ever filed. The order therefore appears to have been improvidently entered. In view of this we remand the cause to the District Court with instructions to vacate the order appealed from without prejudice to the petitioner's filing a motion pursuant to 28 U.S.C.A. § 2255 if he chooses so to do.
This remandment shall not operate as a bar to petitioner asserting any and all proper grounds for relief in such new petition the same as if presented to the District Court for the first time.
We appointed Mr. Richard J. Flynn to serve as petitioner's counsel in this Court without compensation. We thank him for his services.
Remanded with Instructions.