Birtch v. United States, 5858
| Decision Date | 09 March 1949 |
| Docket Number | 5859.,No. 5858,5858 |
| Citation | 173 F.2d 316 |
| Parties | BIRTCH v. UNITED STATES (two cases). |
| Court | U.S. Court of Appeals — Fourth Circuit |
James C. Birtch, pro se, for appellant.
D. Paul Camilletti, Asst. U. S. Atty., of Wheeling, W. Va. (C. Lee Spillers, U. S. Atty., of Wheeling, W. Va., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
These are further attacks upon the judgments and sentences under which appellant is imprisoned, and which were before the Court of Appeals of the Tenth Circuit in Birtch et al. v. Hunter, 10 Cir., 158 F.2d 134, certiorari denied 331 U.S. 825, 67 S.Ct. 1314; 91 L.Ed. 1841, and before this Court in Birtch et al. v. United States, 4 Cir., 164 F.2d 880, certiorari denied 333 U.S. 848, 68 S.Ct. 651, rehearing denied 333 U.S. 870, 68 S.Ct. 785. The present appeals are from orders denying motions made under 28 U.S.C.A. § 2255; but we think that they are entirely without merit. It is true of motions made under this section, as we held of motions in the nature of applications for writs of error coram nobis under the prior practice in the appeal before us, that they "may not be used to review the proceedings of the trial as upon appeal or writ of error, but merely to test their validity when judged upon the face of the record or by constitutional standards." See also Howell v. United States, 4 Cir., 1949, 172 F.2d 213.
Relief under 28 U.S.C.A. § 2255 may be granted only where it appears "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." It should be borne in mind that the purpose of the section was not to enlarge the class of attacks which may be made upon a judgment of conviction, but to provide that the attack must be made in the court where the sentence was imposed and not in some other court through resort to habeas corpus, unless it appears that the remedy by motion is inadequate.
Appellant complains because the court did not make findings of fact and conclusions of law on his motion; but this is not required where it conclusively appears, from the face of the motion and the files and records of the case, as it does here, that the prisoner is entitled to no relief. Furthermore, it is clear that, in view of the...
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Hayman v. United States
..."The following cases seem to hold that it is a substitute remedy for habeas corpus: Taylor v. U. S., 4 Cir., 177 F.2d 194; Birtch v. U. S., 4 Cir., 173 F.2d 316; Howell v. U. S., 4 Cir., 172 F.2d 213; United States v. Meyers, D.C., 84 F.Supp. 766; United States v. Lowery, D.C., 84 F.Supp. 8......
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United States v. Edwards
...inadequate or ineffective to test the legality of the prisoner's detention." The Court of Appeals for the Fourth Circuit in Birtch v. United States, 173 F.2d 316, 317, summarized these principles as follows. It should be observed that Judge Parker, the author of the legislation, participate......
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United States v. Kaplan
...in the sentencing court where the facts and records are accessible rather than by habeas corpus in a distant forum. Birtch v. United States, 4 Cir., 173 F.2d 316; United States v. Gallagher, 3 Cir., 183 F.2d 342; United States v. Riccardi, 3 Cir., 188 F.2d 416; Pulliam v. United States, 10 ......
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Barrett v. Hunter, 3954
...cases seem to hold that it is a substitute remedy for habeas corpus: Taylor v. United States, 4 Cir., 177 F.2d 194; Birtch v. United States, 4 Cir., 173 F.2d 316; Howell v. United States, 4 Cir., 172 F.2d 213; United States v. Meyers, D.C., 84 F.Supp. 766; United States v. Lowery, D.C., 84 ......