Hallowell v. Hunter, 4191.
| Decision Date | 26 January 1951 |
| Docket Number | No. 4191.,4191. |
| Citation | 186 F.2d 873 |
| Parties | HALLOWELL v. HUNTER, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Silvio H. Bottone, Denver, Colo., filed a brief for appellant.
Lester Luther, U. S. Atty., and Malcolm Miller, Asst. U. S. Atty., Topeka, Kan., filed a brief for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.
This is an appeal from an order denying an application by Hallowell for a writ of habeas corpus.
Attached to the application was an order entered in the United States District Court for the Eastern District of Texas, Sherman Division, on May 19, 1950, in the case of United States v. Hallowell, Criminal No. 1087, reading as follows:
However, the application made no reference to the order and contains no allegation with respect to such order, the motion referred to in the order, the grounds for relief set up in such motion, or the action of the court thereon.
As grounds for the writ Hallowell alleged that at the trial of the criminal charge he did not have the assistance of counsel for his defense; that he was unaware and ignorant of his constitutional right to the assistance of counsel; that he did not competently and intelligently waive his right to the assistance of counsel for his defense, and that on June 13, 1949, he was adjudged insane and committed to the Central State Hospital for the Insane by the District Court of Oklahoma County, Oklahoma, but that the sentencing court was unaware of such adjudication.
The lower court denied the application for the writ on the ground that it did not allege facts showing that the remedy by motion under 28 U.S.C.A. § 2255 was inadequate and ineffective to test the legality of Hallowell's detention.
Section 2255 provides that an application for a writ of habeas corpus by a prisoner who is authorized to apply for relief by motion under § 2255, "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."
In his brief, counsel for Hallowell asserts that the issue is the mental incompetency of Hallowell to waive his right to counsel and that the adjudication of insanity was not brought to the attention of the sentencing court and was never considered by it.
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