United States v. Skoog, Crim. A. No. 14674.

• Decision Date: 16 September 1958
• Docket Number: Crim. A. No. 14674.
• Citation: 165 F. Supp. 397
• Parties: UNITED STATES of America, v. Billy Leonard SKOOG, Defendant.
• Court: U.S. District Court — District of Colorado

165 F. Supp. 397

UNITED STATES of America, v. Billy Leonard SKOOG, Defendant.

Crim. A. No. 14674.

United States District Court D. Colorado.

September 16, 1958.

Donald E. Kelley, U. S. Atty. for the District of Colorado; John S. Pfeiffer, Asst. U. S. Atty. for the District of Colorado, Denver, Colo., for the United States.

E. F. Conly, Denver, Colo., for defendant.

KNOUS, Chief Judge.

Herein the defendant, proceeding under Title 28 U.S.C. § 2255, has moved the Court to vacate and set aside the sentence heretofore imposed against this defendant.

By indictment filed in this Court the defendant, with several others, was charged in one count with forcibly breaking "into a building located at 2238 South Colorado Boulevard, Arapahoe County, Colorado, commonly known as the Iliff Drug Store, and used in part as Contract Post Office Station No. 7 of the Denver, Colorado United States Post Office, with intent to commit in said Contract Post Office Station No. 7 larceny, all contrary to Title 18 U.S.C. § 2115."

In another count in the same indictment, the defendant, with others, was charged with conspiring to commit post office burglary on the premises last described, in violation of Title 18 U.S.C. §§ 371 and 2115. Defendant was found guilty after trial to a jury and was sentenced to a term of imprisonment which he presently is serving. Conviction was appealed and affirmed. Skoog v. United States, 10 Cir., 238 F.2d 766.

In his pending motion the defendant contends that the Court was without jurisdiction to impose sentence because, as he alleges, at the trial it was not proved that the defendant broke into or entered that part of the Iliff Drug Store which was used as a contract post office station, nor was any proof submitted to show any conspiracy to commit larceny of such post office station.

In support of his contention the defendant relies upon the case of Sorenson v. United States, 8 Cir., 168 F. 785, wherein on appeal a conviction for burglarizing a post office was set aside for the failure of evidence to show that the safe containing the property taken was within the enclosure marking the post office compartment in the building entered.

The instant question was not raised at the trial, nor in the appeal.

The indictment clearly and sufficiently charged an offense within the jurisdiction of this Court and there can be no question that this Court acquired jurisdiction over the person of the defendant.

In the view of the Court, considering the foregoing, the defendant's motion does not properly raise the question of the jurisdiction of the court, but rather is directed to the merits of the case; in other words, the motion does no more than allege an insufficiency of the trial evidence to support the charges laid in the indictment.

It is well established that the sufficiency of proofs at the trial resulting in a prisoner's conviction can not be raised by motion grounded on 28 U.S.C. § 2255, supra, to vacate judgment and sentence. Finan v. United States, 4 Cir., 177 F.2d 850; Davilman v. United States, 6 Cir., 180 F.2d 284; Taylor v. United States, 4 Cir., 177 F.2d 194.

Attached to defendant's brief is an affidavit of his counsel stating that his investigation discloses that at the time of the alleged offense the safe burglarized was situate in the Iliff Drug Store proper and not in the area set aside for the conduct of the contract post office station therein. Upon this basis it is requested that the defendant now be permitted to offer testimony with respect to the location of the safe at the time in question. Such procedure is not permissible herein.

In a proceeding to vacate a sentence imposed on conviction, a petitioner is not entitled to re-try factual issues relating to his guilt or innocence. Sehon Chinn v. United States, D.C., 85 F.Supp. 561. Section 2255 does not open the door to a defendant to re-litigate a matter which should have been raised directly in the original trial of...