Robinson v. Swope, 12888.
Decision Date | 24 June 1952 |
Docket Number | No. 12888.,12888. |
Citation | 197 F.2d 633 |
Parties | ROBINSON v. SWOPE. |
Court | U.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.
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:
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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