La Fever v. United States, 12896.

• Decision Date: 28 June 1960
• Docket Number: No. 12896.,12896.
• Citation: 279 F.2d 833
• Parties: Harry LA FEVER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

279 F.2d 833 (1960)

Harry LA FEVER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 12896.

United States Court of Appeals Seventh Circuit.

June 28, 1960.

Herbert B. Olfson, Chicago, Ill., for appellant.

Don A. Tabbert, U. S. Atty., James L. Miller, Asst. U. S. Atty., Indianapolis, Ind., for respondent-appellee.

Before SCHNACKENBERG and KNOCH, Circuit Judges, and MERCER, District Judge.

SCHNACKENBERG, Circuit Judge.

On March 2, 1956, petitioner was convicted by the judgment of the district court upon his plea of guilty to one count in an indictment and three counts in another indictment, charging violations of 18 U.S.C. § 2314, in that he aided and abetted other named defendants in the commission of an offense under said section, described in his brief in this court as the transporting in interstate commerce of certain forged checks. He was sentenced to prison and now remains incarcerated.

On June 26, 1957, petitioner filed in the district court, pursuant to 28 U.S.C.A. § 2255, a motion to set aside the judgment and sentence imposed upon him. The district court denied the motion summarily, and on appeal to this court, we reversed and remanded the case, LaFever v. United States, 7 Cir., 257 F.2d 271.

On January 12, 1959, the district court conducted a hearing on remandment. On March 26, 1959, it made findings of fact and conclusions of law, LaFever v. United States, D.C., 171 F.Supp. 553, and again denied petitioner's motion under § 2255. To review this action, petitioner has appealed.

Petitioner now contends that the district court erred in denying his motion under § 2255.¹

On February 20, 1959, this court, in United States v. Hoyland, 7 Cir., 264 F.2d 346, overruled LaFever v. United States, 7 Cir., 257 F.2d 271.

Petitioner asserts that his motion under 28 U.S.C.A. § 2255 tests the validity of his conviction and, in its essentials, presents the "issue whether a Federal court had jurisdiction over the crime committed where the check cashed bears the name of a fictitious person and where no representation is made, when the check is cashed, that the name is that of a real person." (Italics supplied.)

We do not believe that following a plea of guilty petitioner is in any position to raise what he calls a question of jurisdiction because of the facts which he now incorporates in his statement of the issue presented. This court went into this subject fully in United States v. Hoyland, supra, 264 F.2d 351, 352. After citing United States v. Caufield, 7 Cir., 207 F.2d 278, Klein v. United States, 7 Cir., 204 F.2d 513, Keto v. United States, 8 Cir., 189 F.2d 247, Smith v. United States, 10 Cir., 205 F.2d 768, 770, Barnes v. Hunter, 10 Cir., 188 F.2d 86, 89, United States v. Jonikas, 7 Cir., 197 F.2d 675, 676 and Knewel v. Egan, 268 U.S. 442, 446, 45 S.Ct. 522, 69 L.Ed. 1036, we concluded in Hoyland that every criminal judgment is

"* * * based upon a charge containing allegations here characterized by defendant as jurisdictional facts. Absent such allegations, no Federal offense could be stated. Where a defendant pleads not guilty, he places upon the government the burden of proving all essential facts alleged, whether they be characterized as jurisdictional or otherwise. On the other hand, his voluntary plea of guilty admits all

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