The opinion of the court was delivered by: FOLLMER
Petitioner's present application for writ of habeas corpus is the third filed in this District.
These were preceded in the original cause by appeal to the United States Court of Appeals, Second Circuit, and for certiorari to the Supreme Court, 332 U.S. 777, 68 S. Ct. 41, and by numerous applications for writs of habeas corpus in the Southern District of New York, which various proceedings we had occasion to summarize in our opinion to Habeas Corpus No. 217. (See opinion in Lowe v. Hiatt, D.C.M.D. Pa., 77 F.Supp. 303).
His second application in this District
was submitted to Honorable John Biggs, Jr., Chief Judge, United States Court of Appeals, Third Circuit, who also
commented on the frivolous nature of his applications.
The present petition is largely repetition of allegations contained in previous applications. There was added, however, an allegation 'that the petitioner here-to, was required under duress, without any type of elucidation, or advise from the Court, or the Court appointed Counsel to plead guilty to a bill of information * * * .'
Respondent has moved that the Rule to Show Cause be discharged and the application for writ of habeas corpus refused for the reason that petitioner should under the circumstances of this case, make his motion to the trial court.
The matter now alleged by petitioner (if true) was known to him at the time of sentence and throughout the various and numerous subsequent proceedings by appeal and habeas corpus; it constitutes not only an imposition on the sentencing court but a most serious charge against responsible officers of that court. The contention falls within that provision of Section 2255 of the revised Judicial Code, 28 U.S.C.A. § 2255, where applicant is in custody under sentence of a federal court and is claiming 'that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction * * * , or is otherwise subject to collateral attack'. A motion to the trial court would be more adequate and effective. Moreover, it would be much fairer to the attorney involved in the allegation who was court appointed counsel and served without compensation, than to compel such attorney to expend both time and money to appear in this District, or be compelled to depend upon the effect of an affidavit. All the court officials involved in the allegation, and all the records and pertinent material are in the sentencing district, and the sentencing court is far more familiar with what transpired at the time of sentence and in a far better position to judge the issue presented. Furthermore, if the allegation is true and by reason thereof the sentencing court has been imposed upon, that is the one court that should dispose of this matter. This case 'requires that the attack upon the judgment of imprisonment be made in the court where it was rendered, where the facts with regard to the procedure followed are known to the court officials, and where the United States Attorney who prosecuted the case will be at hand to see that these facts are fairly presented.'
And especially true is it in the present case where petitioner feels that this court is prejudiced.
The rule to show cause and the order to produce the petitioner in court for a hearing on October 15, 1948, are vacated, and the application ...