Curran v. Shuttleworth, 11024.
| Citation | 180 F.2d 780 |
| Decision Date | 27 March 1950 |
| Docket Number | No. 11024.,11024. |
| Parties | CURRAN v. SHUTTLEWORTH, Warden. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
James C. Andrews, Jr., Cincinnati, Ohio (Clarence W. Curran, Milan, Michigan, James C. Andrews, Jr., Cincinnati, Ohio, on brief), for appellant.
Vincent Fordell, Detroit, Michigan (Edward T. Kane, and Vincent Fordell, Detroit, Michigan, on brief), for appellee.
Before HICKS, Chief Judge and SIMONS and ALLEN, Circuit Judges.
Appellant was convicted of violation of § 2554(a), 26 U.S.C. 26 U.S.C.A. § 2554 (a) and was sentenced by the District Court of the Southern District of New York to serve four years in the penitentiary. He filed a petition for writ of habeas corpus in the District Court of the Eastern District of Michigan, which was refused under the provisions of § 2255, 28 U.S.C. 28 U.S.C.A. § 2255, for the reason that the applicant had failed to ask for relief by motion to the court which sentenced him.
Appellant claims that no warrant for his arrest was secured, as required by the Federal Rules of Criminal Procedure, 18 U.S. C.A. He urges that a fatal defect in the proceedings exists because at the arraignment before the commissioner he was charged with the sale of two grains of morphine, whereas in the indictment he was charged with the sale of two grains of heroin. His principal contention is that his constitutional rights were violated at the trial by the failure of the Government to produce the informer who, as testified by the agents of the United States Bureau of Narcotics, in their presence received from the appellant a packet containing narcotics, and later delivered it to the agents.
The judgment of the District Court clearly is correct and must be affirmed. The petition fails to show that appellant complied with the requirements of § 2255, 28 U.S.C., 28 U.S.C.A. § 2255. Also the errors complained of can not be reviewed by writ of habeas corpus, which can not be used as a substitute for writ of error, Schramm v. Brady, 4 Cir., 129 F.2d 108, or appeal, Leonard v. Hudspeth, Warden, 10 Cir., 112 F.2d 121. The defects in procedure in the arrest are not ground for discharge under habeas corpus, where there is sufficient ground for detention, Stallings v. Splain, 253 U.S. 339, 343, 40 S.Ct. 537, 64 L.Ed. 940, such as indictment by the grand jury. Hall v. Johnston, 9 Cir., 86 F.2d 820. Error with respect to the admission of testimony or the sufficiency of evidence can not be raised by habeas corpus proceedings. McMicking v. Schields, 238 U.S. 99, 35 S.Ct. 665, 59 L.Ed. 1220; Wright v. Brady, 4 Cir., 129 F.2d 109. Cf. Birtch v. Hunter, Warden, 10 Cir., 158 F.2d 134, certiorari denied, 331 U.S. 825, 67 S.Ct. 1314, 91 L.Ed. 1841.
The fact...
To continue reading
Request your trial
-
United States v. Price, Civ. A. No. 16335.
...Schechter v. Waters, 10 Cir., 1952, 199 F.2d 318; Smith v. United States, 1950, 88 U.S. App.D.C. 80, 187 F.2d 192; Curran v. Shuttleworth, 6 Cir., 1950, 180 F.2d 780; Morton v. Steele, 8 Cir., 1950, 179 F.2d 956; McMullen v. Squier, 9 Cir., 1944, 144 F.2d 703; Wilhoit v. Hiatt, D.C.M.D. Pa.......
-
United States v. Claudy
...61, reversed Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 1740; Hinley v. Burford, 10 Cir., 183 F.2d 581. 2 Curran v. Shuttleworth, 6 Cir., 180 F.2d 780; Telfian v. Sanford, 5 Cir., 161 F. 2d 556, certiorari denied 332 U.S. 781, 68 S.Ct. 48, 92 L.Ed. 365; rehearing denied 335 U.S......
-
United States v. McNeill
...339, 343, 40 S.Ct. 537, 64 L.Ed. 940; United States ex rel. Ling Yee Suey v. Spar, 2 Cir., 1945, 149 F.2d 881, 883; Curran v. Shuttleworth, 6 Cir., 1950, 180 F.2d 780, 781; United States ex rel. Brink v. Claudy, D.C.W.D.Pa., 1951, 96 F.Supp. 220, 224, affirmed 3 Cir., 1951, 194 F.2d This co......
-
Reese v. Cardwell, 19084.
...unless it is shown that the errors were so conspicuously prejudicial as to deprive the defendant of a fair trial." See also Curran v. Shuttleworth, 180 F.2d 780, 781 (C.A. 6); Gemmel v. Buchkoe, 358 F.2d 338 (C.A. 6) cert. den. 385 U.S. 962, 87 S.Ct. 402, 17 L. Ed.2d 306, rehear. den. 385 U......