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DUVAL v. UNITED STATES

November 17, 1981

Karl DUVAL, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: BRAMWELL

DECISION AND ORDER

 BRAMWELL, District Judge.

 Petitioner Karl Duval, by a petition dated February 11, 1981, has moved pursuant to 28 U.S.C. § 2255 (1976) for an order vacating his convictions for armed and unarmed bank robbery.

 Petitioner was convicted, after a trial by jury, of two counts of bank robbery in violation of 18 U.S.C. § 2113(a) (1976), two counts of armed bank robbery in violation of 18 U.S.C. § 2113(d) (1976), and one count of conspiracy in violation of 18 U.S.C. § 371 (1976). *fn1" On July 13, 1979, he was sentenced to a concurrent twenty-five year term of imprisonment for each of the two robberies. He was sentenced to a consecutive five year probation term on the conspiracy charge.

 After dismissal of petitioner's appeal by the United States Court of Appeals for the Second Circuit on November 26, 1979, petitioner moved this Court for the § 2255 relief.

 In support of the motion, petitioner contends the certain omissions from the court's charged constituted error. More specifically, petitioner asserts that this Court failed to properly instruct the jury that the defendant could be found innocent, that armed bank robbery constitutes a crime a greater severity than unarmed bank robbery, and that defendant could be convicted of unarmed robbery should the jury acquit on the armed charge. Moreover, petitioner contends that the sentence imposed was illegal. None of these contentions has merit. I turn first to petitioner's objections with respect to the Court's charge.

 THE COURT'S CHARGE

 Rule 30 of the Federal Rules of Criminal Procedure provides in pertinent part that:

 
No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

 On May 30 this Court held a charging conference at which all parties were given ample opportunity to present their requests to charge. At that time, all of petitioner's requests were granted (Tr. 494). In addition, he was given two opportunities to object to the charge but failed to do so (Tr. 515, 521). The record also reveals however, that neither the petitioner nor the Government requested specific charges of the type contended for by petitioner. On May 31, this Court charged the jury with neither side voicing any objection (Tr. 719).

 In view of this, any objections petitioner has to the charge were waived and this Court is therefore unable to consider them in this collateral proceeding. See Quinn v. United States, 499 F.2d 794 (8th Cir. 1974).

 PETITIONER'S SENTENCE

 With respect to petitioner's contention that he was illegally sentenced, this Court finds that the sentence imposed was well within both the constitutional and statutory parameters of 18 U.S.C. § 2113(d) (1976). *fn2"

 Section 2255 provides a means for a prisoner in custody under a sentence of a Federal Court to challenge his ...


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