Barrett v. Hunter, 3954

Citation20 ALR 2d 965,180 F.2d 510
Decision Date15 March 1950
Docket Number3978.,No. 3954,3954
PartiesBARRETT v. HUNTER, Warden. RUTLEDGE v. HUNTER, Warden.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

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Charles Graham, Denver, Colo., for appellant Bill J. Barrett.

Hulan C. Rutledge filed a brief pro se.

Malcolm Miller, Assistant United States Attorney, Topeka, Kan. (Lester Luther, United States Attorney, Topeka, Kan., was on the briefs), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON, HUXMAN, MURRAH and PICKETT, Circuit Judges.

PHILLIPS, Chief Judge.

These are appeals from orders denying applications for writs of habeas corpus.

In Number 3954, the application for the writ alleged that Barrett was confined in the United States Penitentiary, at Leavenworth, Kansas; that an information was filed in the United States District Court for the Northern District of Texas charging that Barrett unlawfully escaped from the Federal Correctional Institution, at Seagoville, Texas; that Barrett pleaded guilty to the charge and was sentenced to imprisonment for a term of five years; that about one year after the imposition of sentence, Barrett filed a motion in the sentencing court to vacate the waiver of indictment signed by him, the plea of guilty entered to the information, and the sentence imposed; that "the court denied the motion without hearing any evidence, and your petitioner appealed," and that "This was denied also"; that intermediate to his arrest and his appearance before the sentencing court, Barrett was confined in the Federal Correctional Institution in solitary confinement and held incommunicado; that he was not versed in law or criminal procedure; that he had no opportunity to learn of his constitutional or legal rights; that he did not effectively waive his rights to the assistance of counsel; that he did not have the benefit of counsel at the time he signed the waiver of indictment; that such waiver was not signed in open court; that he did not have the benefit of counsel at the time he entered the plea of guilty; that at the time of his alleged escape, he was being held by virtue of a commitment issued by the United States Parole Board at Washington, D. C.; that the order revoking his parole was unlawful because he was then a member of the Armed Forces; that he was never brought before a United States Commissioner, and was held in custody for approximately two weeks before he was brought before the sentencing court, and had no opportunity to prepare a defense.

In Number 3978, Rutledge, in his application for the writ, alleged that he was confined in the United States Penitentiary, at Leavenworth, Kansas, by virtue of a judgment and sentence of the United States District Court for the Western District of Missouri; that the sentence was imposed for an alleged violation of the Federal Escape Act, 18 U.S.C.A. § 751; that he was denied the right of trial by jury; that counsel appointed by the sentencing court to represent him in the criminal proceeding did not enter a plea of guilty on his behalf; that an attorney appointed by the sentencing court to represent Rutledge's codefendant entered a plea of guilty for both the codefendant and Rutledge; that Rutledge made an oral statement in open court denying that he was guilty of the offense charged; that he filed a motion to vacate the sentence in the sentencing court, and that such motion was overruled March 15, 1949. He did not appeal from the order denying such motion.

In Number 3954, the trial court denied the application for the writ on the ground that the motion to vacate the sentence, filed under 28 U.S.C.A. § 2255, had been denied and that the allegations in the application for the writ failed to allege facts showing that the remedy under § 2255 was inadequate or ineffective to test the legality of Barrett's detention.

In Number 3978, the trial court sustained a motion to dismiss the application for the writ on the ground that the application failed to show that Rutledge had appealed from the order denying his motion to vacate, and that such motion had been denied, and that the allegations in the application for the writ failed to show the remedy under § 2255 was inadequate or ineffective to test the legality of Rutledge's detention.

Section 2255 provides:

"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

"A motion for such relief may be made at any time.

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

"A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

"The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

"An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.

"An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."

Prior to the enactment of § 2255, a practice had grown up on the part of prisoners, when their first application for a writ of habeas corpus had been denied, to file successive applications for the writ on the same or slightly different grounds and to prosecute appeals from their denial.1 In a great many habeas corpus proceedings, the legality of the detention could only be determined upon an examination of the records and files in the sentencing court, and after the taking of testimony of officials of such court and other witnesses who generally resided in the vicinity of the sentencing court. The object and purpose of § 2255 was to afford a prisoner the right to make a direct attack on the legality of his detention on any of the grounds for collateral attack enumerated in the third paragraph of such section2 that arose at, or prior to the time of the imposition of sentence. It was intended to provide a prisoner, in custody under sentence of a court established by an Act of Congress, an exclusive remedy for determining the legality of his detention in the court which imposed the sentence, where the matter could most readily and conveniently be heard, and to make the final determination with respect to the legality of such detention conclusive, except in cases where the remedy thus provided was inadequate or ineffective to test the legality of such detention.3

Section 2255 should be construed, if the language thereof permits, so as to effectuate the object and purposes of its enactment4 and sustain its constitutionality.5

The primary question here presented is whether the remedy provided by § 2255 affords the prisoner a remedy which is the equivalent of that afforded in a conventional habeas corpus proceeding.

The grounds for a motion to vacate, under § 2255, encompass all of the grounds that might be set up in an application for a writ of habeas corpus predicated on facts that existed at or prior to the time of the imposition of sentence.

If the motion and the records and files of the case conclusively show that the prisoner is not entitled to any relief, the court is not required to entertain the motion.

In conventional habeas corpus, the court is not required to issue the writ if, on the face of the petition, it appears that petitioner is not entitled to the writ, or if, from undisputed facts or from uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting the writ exists;6 or if the issuance of the writ is unnecessary to afford the petitioner the relief to which he is entitled.7

If it does not conclusively appear that the prisoner is not entitled to any relief, the court, under § 2255, must cause a notice to be served upon the United States Attorney, grant a prompt hearing on the motion, determine the issues, and make findings of fact and conclusions of law.

Under § 2255, the court may entertain and determine the motion without requiring the production of the prisoner. We do not think it was intended by such provision to give the court an absolute discretion. Rather, we think the intention was to provide that the court may entertain and determine the motion without requiring the production of the prisoner when the motion or the records and files of the case conclusively show that the prisoner is not entitled to any relief, or where the presence of the prisoner is unnecessary to afford him the relief...

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  • United States v. Hayman
    • United States
    • United States Supreme Court
    • January 7, 1952
    ...public Safety may require it.' U.S.Const. Art. I, § 9, cl. 2. 6 Martin v. Hiatt, 5 Cir., 1949, 174 F.2d 350, and Barrett v. Hunter, 10 Cir., 1950, 180 F.2d 510, 20 A.L.R.2d 965, have held expressly that Section 2255 is constitutional. Habeas corpus was also denied on the basis of Section 22......
  • Tooisgah v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 5, 1950
    ...sought," thus likening successive motions under Section 2255 to successive applications for writs of habeas corpus. See Barrett v. Hunter, 10 Cir., 180 F.2d 510; and see 28 U.S.C.A. § Since this is the first motion under Section 2255, cf. Gebhart v. Hunter, 10 Cir., 184 F.2d 644, it may be ......
  • Hayman v. United States, 12297.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 14, 1951
    ...such proceedings would be doubled by Section 2255, instead of giving the relief to the courts which Congress was seeking. In Barrett v. Hunter, 10 Cir., 180 F.2d 510, Section 2255 is held valid on the assumption that the court in a district other than the one of the prisoner's incarceration......
  • Belton v. United States, 13690.
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    • May 15, 1958
    ...a second or successive motion under § 2255. The authorities to the contrary rely principally upon Barrett v. Hunter and Rutledge v. Hunter, 180 F.2d 510 (1950). In those cases the United States Court of Appeals for the Tenth Circuit was considering appeals from orders denying applications f......
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