Opinion
No. 22391.
January 5, 1966. Rehearing Denied February 25, 1966.
Frank Casados, pro se.
Andrew L. Jefferson, Jr., Asst. U.S. Atty., Ernest Morgan, U.S. Atty., San Antonio, Tex., for appellee.
Before JONES and BROWN, Circuit Judges, and DYER, District Judge.
The appellant was convicted of violating the marihuana laws of the United States. The validity of his sentence was previously considered by the Court in Casados v. United States, 5 Cir., 300 F.2d 845, cert. den. 373 U.S. 938, 83 S.Ct. 1543, 10 L.Ed.2d 693. The present challenge to the validity of the conviction and sentence is presented by an application which in form was for mandamus and which the district court properly treated as a motion under 28 U.S.C.A. § 2255. Two questions, presented to the district court, are raised here. The first point raised is that at the trial counsel conferred with the court at the bench without the presence of the court reporter taking down and transcribing the proceedings at the bench in violation of 28 U.S.C.A. § 753(b). Whether or not side-bar colloquy needs to be reported is a question which we do not decide. It is not a question that can be raised in a Section 2255 proceeding. The other contention is that perjured testimony was knowingly used. The district court had a hearing and the persons relied upon by the appellant to sustain his position were examined. The court decided that the proof of the charge had not been made. The determination was correct.
The judgment of the district court is
Affirmed.