Gajewski v. Stevens
Decision Date | 09 July 1965 |
Docket Number | No. 17934.,17934. |
Citation | 346 F.2d 1000 |
Parties | Mervin A. GAJEWSKI, Appellant, v. L. B. STEVENS, Warden, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Mervin A. Gajewski, pro se.
Miles W. Lord, U. S. Atty., and Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., filed printed brief for appellee.
Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.
Before us is an appeal taken by Mervin A. Gajewski, hereinafter called defendant, from a final order of the United States District Court for the District of Minnesota, in case No. 3-64-306 Civil, dismissing his petition for writ of habeas corpus. The original record in this case, which includes a transcript of the clerk's docket entries, shows that defendant filed a petition for writ of habeas corpus with a judge of this court and that such judge, pursuant to 28 U.S.C.A. § 2241(b), declined to entertain the petition but transferred the same to the United States District Court of Minnesota where it was filed on October 9, 1964. On the same date, an order was entered by Judge Donovan dated October 7, 1964, denying the writ. In the course of the order, Judge Donovan states:
On October 15, 1964, defendant filed motion pursuant to Fed.R.Civ.P. 59 (e) to alter judgment. Such motion was denied by order dated October 20, 1964. The notice of appeal in the present case is defective in stating that the appeal is from the October 20, 1964, order and in failing to state that it is from the October 7, 1964 order denying the petition. Notices of appeal are entitled to a liberal construction where the intent of the party taking the appeal is apparent and the adverse party is not prejudiced. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222; Railway Express Agency, Inc. v. Epperson, 8 Cir., 240 F.2d 189. Such liberal construction is particularly appropriate with respect to a pro se habeas corpus proceeding. We treat the appeal as being from the judgment dismissing the petition.
The petition complains of the illegality of defendant's conviction by a jury and the resulting sentence imposed upon a two count conspiracy indictment tried in the United States District Court for the District of North Dakota. The facts relating to this case are fully set out in our opinion affirming the conviction. Gajewski v. United States, 8 Cir., 321 F.2d 261, cert. denied 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416.
Defendant at the time he filed his present petition was serving his sentence in a Minnesota federal prison. On December 10, 1964, defendant was released upon parole but remains under supervision until February 13, 1966. The Government urges that by reason of such release on parole this appeal should be dismissed as moot. Since parole restrictions remain outstanding, the Government's position is not well taken. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285.
28 U.S.C.A. § 2255 specifically provides that a writ of habeas corpus shall not be entertained if petitioner has not applied for and been denied relief by the sentencing court unless it appears that the § 2255 remedy is inadequate to test the legality of the confinement. In the present action, defendant has made no allegation with respect to the unavailability or inadequacy of § 2255 relief at the time he filed his present petition. There is no showing that defendant has raised by a § 2255 proceeding in the sentencing court the issues he here raises.2 Absent such showing, the court was without jurisdiction to entertain the petition. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232; Burdette v. Settle, 8 Cir., 296 F.2d 687; Simmons v. United States, 8 Cir., 253 F.2d 909.
While we are of the view that the petition should be dismissed for want of jurisdiction for the reason hereinabove stated, we are fully convinced that if the merits of the case are reached, the dismissal was proper. Defendant asserts that some twenty errors occurred in the trial resulting in his conviction. Most of such errors asserted relate to rulings upon ...
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