Jones v. Squier, 13200.
Decision Date | 28 February 1952 |
Docket Number | No. 13200.,13200. |
Citation | 195 F.2d 179 |
Parties | JONES v. SQUIER. |
Court | U.S. Court of Appeals — Ninth Circuit |
Fred Dwight Jones, in pro. per.
J. Charles Dennis, U. S. Atty., Guy A. B. Dovell, Asst. U. S. Atty., Tacoma, Wash., for appellee.
Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.
This is an appeal from an order dismissing a petition for a writ of habeas corpus in which Jones sought to establish that the judgment of conviction (a) for conspiracy with one Guadalupe De Anda to commit the offense of theft from an interstate shipment in violation of 18 U.S.C. § 659, and (b) for aiding and abetting De Anda in the theft for which they conspired, under which he is held a prisoner by appellee, is invalid because Jones had been previously indicted for the same theft and tried and acquitted. He claims the trial and conviction on the conspiracy and aiding and abetting charges is a violation of the double jeopardy provision of the Fifth Amendment. The appellee does not dispute Jones' claim that he sought relief by motion under 28 U.S.C. § 2255 without avail.
We think we are not permitted to consider the merits of these contentions in this habeas corpus proceeding because the district court was without jurisdiction to entertain Jones' application for the writ. Section 2255 of 28 U.S.C. provides in its last sentence that where, as here, the contentions of such a federal prisoner as Jones can adequately and effectively be disposed of under its provisions and the prisoner fails to move under that section to vacate his sentence, he cannot apply for the writ nor can he so apply when he moves and is denied the relief sought. That portion of section 2255 reads:
The motion under that section clearly affords an adequate and effective remedy to test the legality of Jones' detention. This has been made clear in the recent decision of the Supreme Court in United States v. Hayman, 72 S.Ct. 263, 272, 96 L.Ed. ___. There the Supreme Court reviews the history of the legislation and declares the purpose of Congress in enacting § 2255 is to afford the same rights as those litigated in a habeas corpus proceeding.
The Hayman decision further cites the statement of the Revisers who framed the section that: * * *"(Emphasis supplied.)
The nature of the writ of error coram nobis is that it is a civil proceeding in which the judgment of the court is res judicata at least of the issues tendered and joined. Cf. Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 86 L.Ed. 1302. In accord with this is the provision of the last sentence of § 2255 providing that if the relief by motion is denied the moving party may not apply for the writ of habeas corpus.2
That the Congress has the power to limit to the motion proceeding the consideration of the issues tendered by Jones as to the error of a court concededly having jurisdiction to entertain the prosecution of Jones and over Jones' person is apparent. The judgment in the conspiracy and aiding and abetting case shows on its face that the court had jurisdiction of the subject matter and of the person of Jones who appeared and pleaded not guilty.3 Hence no relief could be afforded Jones under the Great Writ as it stood at the time the Constitution was adopted. Under that Writ the court was confined to the face of the judgment and the process by which jurisdiction over the accused was had for the sole purpose of determining whether the convicting court had jurisdiction of the prosecution and the accused. The court could not even examine the indictment to see if it charged an offense not punishable criminally. See Chief Justice Marshall's opinion for a unanimous court in Ex parte Watkins, 3 Pet. 193, 202, 209, 7...
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Graham v. Blackwell, Civ. A. No. 13208.
...of the sentencing and appellate courts to rule in petitioner's favor cannot make his § 2255 ineffective and inadequate. Jones v. Squier, 195 F.2d 179 (9th Cir. 1952); Williams v. Heritage, 250 F.2d 390, 391 (9th Cir. 1957); Madigan v. Wells, 224 F.2d 577 (9th Cir. 1955), cert. denied, 351 U......
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