Johnny Ray SMITH, Appellant, v. UNITED STATES of America, Appellee, 250 F.2d 842

PER CURIAM. Here twice before under a

Section 2255 (28 U.S.C.A. § 2255) proceeding, Smith v United States, 5 Cir., 223 F.2d 750; Smith v. United States, 5 Cir., 238 F.2d 925, rehearing 240 F.2d 347, Smith, by this third appeal, presents for the first time an appeal from the criminal conviction and sentence entered after our last remand. On the hearing, the District Court set aside the sentence of conviction adjudging a thirty-year prison term and then imposed a sentence of ten years. But the Court denied the successive motions made by Smith to withdraw his (

a) plea of guilty, (

b) waiver of venue, (

c) waiver of counsel and (

d) waiver of indictment. By suitable language in the opinion itself and by similar precise terms in the mandate, we sought on rehearing, 240 F.2d 347, to make plain that the sentence of conviction of thirty-years imprisonment was alone mandatorily to be set aside, and that as to the plea of guilty and waivers, the District Court was free to allow such of these as the interests of justice might require. The District Court, finding expressly that the interests of justice did not so require, paid scrupulous heed to, and carried out, the precise terms of our mandate.

Whether the interests of justice required further action was of the very nature calling for the exercise of the highest order of reasoned judicial discretion. Nowhere does-Smith succeed in demonstrating that this conclusion lacks substantial basis. All relief sought must therefore be denied; the judgment appealed from is affirmed, the denial of application for ha-beas corpus is affirmed and the alternative writ of mandamus is denied. Affirmed and denied. .

As a precautionary measure fully to preserve the points, Smith’s able court-appointed counsel, simultaneous with the hearing below, filed a petition for habeas corpus. This is also an appeal from the denial of that writ. Additionally, Smith requests that we treat the main appeal as an alternative application for writ of mandamus to compel the District Judge to comply with our mandate. .

Smith, recognizing that the Court, 238 F.2d 925, at page 929, with Judge Rives dissenting, pages 931-93-1, has expressly ruled adversely to his contentions, presents it again merely to preserve the point for possible certiorari review. .

Our opinion on rehearing stated 240 F. 2d 347: “Further, while we are not convinced that the last sentence in the opinion, which counsel refer to as ‘the remanding order of the court’, needs clarifying, in deference to their view that it does, the last paragraph of the opinion is amended to read: “ ‘The judgment is reversed and the cause is remanded with directions to sot aside the conviction and sentence and to proceed further and not inconsistently herewith, including, if the district judge is of the opinion that the ends of justice require it, permitting the defendant to withdraw his waiver of counsel and his plea of guilty and to stand trial.’ ”