Robinson v. Swope, 12888.

Decision Date24 June 1952
Docket NumberNo. 12888.,12888.
Citation197 F.2d 633
PartiesROBINSON v. SWOPE.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas Henry Robinson, Jr., in pro. per.

Chauncey Tramutolo, U. S. Atty., Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and HEALY and POPE, Circuit Judges.

DENMAN, Chief Judge.

Robinson appeals from a denial by the district court of his application for a writ of habeas corpus. The ground of the denial is that Robinson has failed to apply for relief under 28 U.S.C. § 2255 by motion to the court which sentenced him, it further appearing that the remedy by that motion is neither inadequate nor ineffective to test the legality of his detention.

Robinson contends that he is entitled to have his habeas corpus application entertained because § 2255 provides a remedy only where the facts showing an unlawful detention are dehors the record while here some of the grounds of his application concern the conduct of the court in the course of the trial. The first sentence of the motion statute shows the contrary. It provides that its relief may be sought where "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack".

Whether a sentence is in excess of the maximum authorized by law is solely a matter within the record of the condemning court. The succeeding phrase "or is otherwise subject to collateral attack" includes other grounds within that court's record.

Robinson relies on the following statements of the Habeas Corpus Committee of the Judicial Conference of the United States in recommending its proposed form of relief by motion:

"It was the opinion of the Committee that the procedure in ordinary habeas corpus proceedings, such as cases arising in connection with removal, with deportation under the immigration laws or with imprisonment under process or judgment void on the face of the proceedings, was simple and well settled; and that no action, legislative or otherwise, was required with respect thereto. * * *
"The present procedure in habeas corpus was adequate so long as the court hearing the application was held bound by the record made on the trial of a prisoner theretofore convicted in a state or federal court." Report of the Habeas Corpus Committee, submitted at the 1943 Session of the Judicial Conference.

In view of the fact that the proposal of the Committee contained the above provisions of the motion procedure covering matters...

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8 cases
  • US Football League v. NAT. FOOTBALL LEAGUE
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 24, 1986
    ...... in which plaintiffs had sued defendants under the Sherman Act, the Clayton Act, and the Robinson-Patman Act. In so ruling, the Court noted certain factors to be considered in ordering a severance, ......
  • United States v. Espinoza
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 3, 1973
    ...See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; Friedman v. United States, 8 Cir., 200 F.2d 690, 697; Robinson v. Swope, 9 Cir., 197 F.2d 633; United States v. Rosenberg, 2 Cir., 195 F.2d 583, 604, et seq. Yet every lawyer engaged in defending criminal cases knows that......
  • Robinson v. United States
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • February 23, 1967
    ...continued litigious proceedings to escape his penalty; such as, Robinson v. Swope, 96 F.Supp. 98 (D.C., 1951); Robinson v. Swope (C.A. 9), 197 F.2d 633 (1952); Robinson v. Swope, cert. denied, 344 U.S. 867, 73 S. Ct. 109, 97 L.Ed. 673 (1952). In these last abovementioned efforts, petitioner......
  • Graham v. Blackwell, Civ. A. No. 13208.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • November 24, 1969
    ...remedy, absent unusual circumstances, making it "inadequate or ineffective to test the legality of his detention." Robinson v. Swope, 197 F.2d 633 (9th Cir. 1952), cert. denied, 344 U.S. 867, 73 S.Ct. 109, 97 L.Ed. 673; Whiting v. Hunter, 204 F.2d 471 (10th Cir. 1953); Holloway v. Looney, 2......
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