James Waddell v. Noah L. Alldredge, Warden, Lewisburg Federal Penitentiary , 457 F.2d 944 ( 1972 )

457 F.2d 944

James WADDELL, Petitioner-Appellant,
v.
Noah L. ALLDREDGE, Warden, Lewisburg Federal Penitentiary,
Respondent-Appellee.

No. 71-3275.

United States Court of Appeals,
Fifth Circuit.

March 30, 1972.

James Waddell, pro se.

John L. Briggs, U. S. Atty., Harvey E. Schlesinger, Asst. U. S. Atty., Jacksonville, Fla., for respondent-appellee.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

PER CURIAM:

1

The sole issue to be determined upon this appeal is whether the district court erroneously found that Appellant Waddell was not entitled to relief under 28 U.S.C. Sec. 2255 on the basis of his contention that his sentencing court failed to advise him of his right to appeal his conviction in forma pauperis, after entry of his plea of guilty.1

2

As the court below correctly held, Rule 32(a) (2), F.R.Cr.P., requires a federal district court to advise the defendant of his right to appeal without cost only in cases where the defendant has been convicted upon a plea of not guilty. Since Waddell did not enter a plea of not guilty, nor has he intimated that his guilty plea is in any way invalid, he is clearly not entitled to the relief he seeks. Barber v. United States, 10th Cir. 1970, 427 F.2d 70, cert. denied 1970, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106; Baker v. United States, 10th Cir. 1968, 404 F.2d 787; Boyes v. United States, 5th Cir. 1965, 354 F.2d 31.

3

The judgment appealed from is affirmed.

1

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