Brown v. Looney, 5636.

Decision Date14 November 1957
Docket NumberNo. 5636.,5636.
Citation249 F.2d 61
PartiesRaymond C. BROWN, Appellant, v. C. H. LOONEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Raymond C. Brown filed a brief pro se.

Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan. (William C. Farmer, U. S. Atty., Topeka, Kan., on the brief), for appellee.

Before MURRAH, PICKETT and LEWIS, Circuit Judges.

PER CURIAM.

On December 2, 1954, Raymond C. Brown was sentenced in the United States District Court for the Western District of Texas to serve a term of 15 years imprisonment upon a conviction by a jury of the offenses of bank robbery and larceny from a bank, 18 U.S.C.A. § 2113(a) and § 2113(b). He is now serving that sentence in the United States Penitentiary at Leavenworth, Kansas, and brought this habeas corpus proceeding alleging that he is unlawfully held and entitled to be discharged. This is an appeal from an order dismissing the petition and remanding the petitioner to the custody of the respondent Warden.

In substance, the ground upon which the petitioner seeks relief is that the conduct of the representatives of the United States immediately after his conviction prevented him from effectively presenting his appeal to the United States Court of Appeals. After sentence the petitioner was committed to the county jail at Waco, Texas, where he remained until March 11, 1955. During this time an appeal of his conviction and sentence was duly taken. He was then removed to the county jail at San Antonio, Texas, and from there to the Federal Correctional Institution at Texarkana, Texas. On September 17, 1955 he was received at the United States Penitentiary at Atlanta, Georgia, and from there transferred to Leavenworth on November 29, 1956.1 The petitioner contends that he should have been permitted to remain in the county jail at Waco during the time that his appeal was pending and that these transfers deprived him of Constitutional rights guaranteed by the Constitution of the United States.

Conceding that the right to appeal a criminal conviction is within the protection of the Constitution, and that if the right is lost or frustrated by unlawful conduct of Government officials a prisoner may obtain relief by habeas corpus,2 the rule has no application here. An appeal was taken and the conviction affirmed. Brown v. United States, 5 Cir., 228 F.2d 286, 287, certiorari denied 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500, rehearing denied 352 U.S. 861, 77 S.Ct. 27, 1 L.Ed.2d 71. In affirming the conviction, the court stated: "The able and experienced district judge conducted the trial patiently, fairly, impartially, and with full recognition of his duty both to the defendants and to the Government." Even though the transfers of the prisoner during the pendency of his appeal may have been wrongful, it is quite apparent that they did not prevent the appeal and were not prejudicial. Upon affirmance, the judgment and sentence became final, therefore the petitioner is not entitled to relief in habeas corpus.

If an attack is to be made upon the legality of the judgment and sentence, it must be done under the provisions of 28 U.S.C.A. § 2255. Osborne v. Looney, 10 Cir., 221 F.2d 254; Barnes v. Hunter, 10 Cir., 188 F.2d 86, certiorari denied 342 U.S. 920, 72 S.Ct. 368, 96 L.Ed. 688; Barrett v. Hunter, 10 Cir., 180 F.2d 510, 20 A.L.R.2d 965, certiorari denied 340 U.S. 897, 71...

To continue reading

Request your trial
5 cases
  • Tanner v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 24, 1969
    ...1629. Although the right to appeal from a conviction in a criminal case is within the protection of the Constitution (Brown v. Looney, 249 F.2d 61, 62 (10 Cir. 1957)), "Due process of law does not require that the trial court see to it that a defendant's attorney makes a motion for a new tr......
  • Carter v. Peyton, Civ. A. No. 66-C-29-L.
    • United States
    • U.S. District Court — Western District of Virginia
    • December 27, 1966
    ...case the prisoner did not "waive" his right to appeal. Among the cases which have distinguished Dowd on its facts are Brown v. Looney, 249 F.2d 61 (10th Cir. 1957), and United States ex rel. Blanton v. Whelchel, 308 F.2d 586 (7th Cir. 1962). In Brown no prejudice resulted from petitioner's ......
  • Brown v. Taylor, 6487.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 14, 1960
    ...imposed by the District Court for the District of Texas rested in that court through proceedings under 28 U.S.C.A. § 2255. Brown v. Looney, 10 Cir., 249 F. 2d 61. However even if the allegation by appellant that the sentence has been interpreted by the Department of Justice as constituting ......
  • Hogue v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 6, 1961
    ...the Court of Appeals was not prejudiced by transfers from county jails to federal prisons while his appeal was pending. Brown v. Looney, Warden, 10 Cir., 249 F.2d 61. In that case the Court of Appeals for the Tenth Circuit held that even though the transfers of the prisoner during the pende......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT