United States v. Fleenor, 9862.
| Decision Date | 25 October 1949 |
| Docket Number | No. 9862.,9862. |
| Parties | UNITED STATES v. FLEENOR. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rudell Fleenor, pro se.
B. Howard Caughran, United States Attorney, Indianapolis, Indiana, Elba L. Branigan, Jr., Assistant United States Attorney, Maurice W. Graston, Assistant United States Attorney, Indianapolis, Indiana, for appellee.
Before MAJOR, Chief Judge, and KERNER and LINDLEY, Circuit Judges.
Defendant was tried and convicted in the United States District Court for the Southern District of Indiana on a two-count indictment, each of which charged a violation of what is known as the White Slave Traffic Act, 18 U.S.C.A. § 398 now § 2421. The judgment based upon such conviction was appealed to this court and affirmed. United States v. Fleenor, 7 Cir., 162 F.2d 935. As a result of such conviction and judgment, the defendant is now confined in the United States Penitentiary at Leavenworth, Kansas.
On November 3, 1948, defendant filed in the same court wherein the judgment against him was entered a motion to vacate the judgment and sentence. The United States entered a motion to dismiss defendant's motion upon the ground that it failed on its face to state facts entitling defendant to the relief sought. A supplemental motion was filed by the government to dismiss defendant's motion on the ground that the court was without jurisdiction. On February 19, 1949, the Honorable Robert C. Baltzell, the same Judge who presided at defendant's original trial and who entered the judgment against him now sought to be vacated, without a hearing and consequently without making findings of fact or conclusions of law, dismissed defendant's motion. The instant appeal comes from this order.
The defendant is not represented by counsel, and being confined in the penitentiary was unable to appear for oral argument. The government waived oral argument so the cause is being considered on the written briefs and arguments submitted by the respective parties. The defendant not being represented by counsel, we have given more than ordinarily careful consideration to the contentions which he advances.
§ 2255, Title 28 United States Code Judiciary and Judicial Procedure, effective September 1, 1948, authorizes the court which has imposed a sentence to "vacate, set aside or correct the sentence" upon motion of a prisoner upon certain designated grounds which so far as here material are "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence." The essence of defendant's attack upon the judgment is that the indictment upon which he was tried did not state an offense within the language of the statute upon which it was predicated and that the judgment was, therefore, void and of no effect. Or, to put it another way, that the court was without jurisdiction to enter the judgment inasmuch as defendant was tried upon an indictment which failed to allege the commission of a crime.
The defendant also contends that the court erred in dismissing his motion without granting a hearing thereon and without making findings of fact and conclusions of law. The pertinent language of § 2255 relative to this latter contention is: "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall * * * grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." It thus appears that the court has a mandatory duty to make findings of fact and conclusions of law "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Thus, we must determine if the court was justified in dismissing defendant's motion without a hearing and without making its findings of fact and conclusions of law.
Prior to a consideration of that question, it appears appropriate to dispose of the contention of the government that defendant's motion was properly dismissed because the court was without jurisdiction. This was the reason assigned in the government's supplemental motion to dismiss, although it was not pointed out why the court did not have jurisdiction. In this court it is contended that the lower court was without jurisdiction because defendant's motion did not show on its face that he had obtained the authority or consent of this court to file the motion. It is argued that inasmuch as the judgment of the trial court was affirmed by this court, the judgment by which the defendant now stands committed is in effect the judgment of this court. No authority is cited which sustains this...
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...238, 239; United States v. Sturm, 7 Cir., 180 F.2d 413, certiorari denied 339 U.S. 986, 70 S.Ct. 1008, 94 L.Ed. 1388; United States v. Fleenor, 7 Cir., 177 F.2d 482; Walker v. United States, 7 Cir., 218 F.2d 80, 81[5, 6]; Yodock v. United States, D.C., 97 F.Supp. Groundless motions may be s......
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...to no hearing. 28 U.S.C. § 2255.9 Earley v. United States, 381 F.2d 715, 716 (9th Cir. 1967), citing and quoting United States v. Fleenor, 177 F.2d 482, 484-485 (7th Cir. 1949). 1 28 U.S.C. "§ 2255. Federal custody; remedies on motion attacking sentence A prisoner in custody under sentence ......
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