Opinion
No. 13727.
November 13, 1959.
Robert C. McIntosh, Cincinnati, Ohio, for appellant.
Russell E. Ake, U.S. Atty., Cleveland, Ohio, by George W. Morrison, Asst. U.S. Atty., Cleveland, Ohio, for appellee.
Before McALLISTER, Chief Judge, and MILLER and WEICK, Circuit Judges.
The above cause coming on to be heard upon the appeal of Julius Bayken from an order denying a motion to vacate sentence. Appellant contended that the District Court had not advised him of his constitutional rights, prior to his plea of guilty. His claim rested upon his testimony on the hearing of motion to vacate sentence. The District Court found the testimony unworthy of belief. The question of credibility is one for the determination of the trier of facts. The burden of proof was upon appellant. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 52(a) of Federal Rules of Civil Procedure, 28 U.S.C.A. A review of the record is convincing that the trial court's findings of fact were not erroneous. The order denying the motion to vacate sentence is affirmed.