762 F. 2d 1011 - Carl Sutton v. United States of America

BEFORE: KENNEDY and CONTIE, Circuit Judges; and GILMORE, District Judge.*

Sutton appeals pro se from the district court's order denying his petition for a writ of coram nobis. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Sutton was convicted by a jury in the Southern District of Ohio on racketeering charges and received a seventeen year sentence plus three years special parole. This Court affirmed his convictions and has previously denied him collateral relief. The present petition alleges that the government used deliberately false information in its affidavit requesting permission to wiretap the telephones used to commit the racketeering activities.

The general rule is that there is no constitutional violation where the unchallenged allegations in a warrant are sufficient to support a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 171-2 (1978). Here Sutton challenges only one small part of a lengthy affidavit that includes many other sources of information showing the existence of probable cause in support of the wiretap request. Therefore, the district court's order denying the petition is correct.

The order of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.