Carroll M. Jenkins v. United States , 249 F.2d 105 ( 1957 )

PER CURIAM.

Appellant moved under 28 U.S.C. § 2255 to vacate and set aside the judgment and sentence in Criminal Case No. 1031-53. The District Court denied this motion without a hearing, on the ground that “The motions, the files and the records of the case conclusively demonstrate that the prisoner is entitled to no relief.”

We think appellant’s allegations of ineffective assistance of counsel required a hearing, particularly because it may appear that appellant’s interests conflicted with the interests of co-defendants who were represented by the same counsel. Cf. Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L.Ed. 680. Moreover, when appellant appeared for sentencing no one was afforded an opportunity to make a statement in his behalf as required by Rule 32(a), F.R.Crim.P. [18 U.S.C.]. It is immaterial that counsel said he had “nothing further to add” to what he had previously said, in appellant’s absence, at the time co-defendants were sentenced. The appellant was entitled to have a statement “made in open court and in his presence.” Gadsden v. United States, 96 U.S.App.D.C. 162, 166, 223 F.2d 627, 631. Appellant must therefore be resentenced even if the hearing discloses no ground for further relief.

Vacated and remanded.