United States v. Donald R. Smith , 309 F.2d 144 ( 1962 )

309 F.2d 144

UNITED STATES of America, Plaintiff-Appellee,
v.
Donald R. SMITH, Defendant-Appellant.

No. 93.

Docket 27608.

United States Court of Appeals Second Circuit.

Argued October 8, 1962.

Decided October 8, 1962.

Donald R. Smith, defendant-appellant, pro se.

Charles F. Crimi, Asst. U. S. Atty., W.D.N.Y., Buffalo, N. Y. (John T. Curtin, U. S. Atty., W.D.N.Y., Buffalo, N. Y., on the brief), for plaintiff-appellee.

Before CLARK, MOORE, and SMITH, Circuit Judges.

PER CURIAM.

1

In this case the court accepted an informal letter sent by the relator, confined in a federal penitentiary, as a petition for relief against his conviction and sentence and then held it inadequate to raise any federal question. We think that having gone this far it would be the wiser course for the court to accord the prisoner an opportunity to show if he has any case. Hence we vacate the denial of relief and remand the action so that the court may allow the relator to state his claims and support them by affidavits or other competent proof. Thereafter the court should decide whether a hearing is required under the principles stated in Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473.

2

Judgment vacated; action remanded.