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CAGLE v. HUMPHREY

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT PENNSYLVANIA.


June 10, 1953.

CAGLE
v.
HUMPHREY, Warden.

The opinion of the court was delivered by: FOLLMER

FOLLMER, District Judge.

Petitioner, a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, makes application in forma pauperis for a writ of habeas corpus, wherein he alleges that he "was tried in the U.S. District Court for the District of Columbia on 25 June, 1952 for the crime of second degree murder. The defense of Self Defense was interposed and the jury returned a verdict of guilty as charges", and sentence was imposed. He further alleges that his conviction was predicated upon perpured testimony, but does not allege that it was known to be perjured by the prosecutor. *fn1" His other contention is incompetency of counsel. It does not appear in the petition whether counsel was employed by him or appointed by the court. *fn2"

 The historical background of the enactment of 28 U.S.C. § 2255 need not be discussed here *fn3" save to point out that the allegation of "incompetency of counsel" had become a standard inclusion in applications for the writ of habeas corpus. Able counsel, appointed by the court to represent indigent defendants, serving conscientiously and without compensation, 4n were then compelled, at their own expense, to leaver their offices and defend their reputations in some distant and strange forum, as well as supply witnesses to prove that which in most instances would be well known to the sentencing court. It was especially this type of situation that caused the passage of 28 U.S.C. § 2255 providing a substitute remedy in the more convenient forum of the sentencing court. *fn5" This remedy is not an intermediate step but an exclusive substitute *fn6" except in those rare situations where the remedy by motion would be inadequate or ineffectual. 7n Since the remedy under section 2255 is exclusive, if applicant is unsuccessful on such motion, it does not entitle him to a reconsideration by habeas corpus in another district. *fn8" His remedy is by appeal from the judgment on the motion. *fn9" To permit a habeas corpus proceeding under such circumstances would frustrate the purposes of section 2255 and restore the evils it sought to overcome. *fn10"

 The present petition alleges that relief sought under 28 U.S.C. § 2255 would be in vain. No such assumption can be made. For the issues raised, the remedy under 28 U.S.C. § 2255 is adequate. If petitioner feels that the sentencing court will err in the determination of the factual issues, his remedy is clearly indicated in United States v. Hayman, 342 U.S. 205, 72 S. Ct. 263, 96 L. Ed. 232. As Judge Parker in Meyers v. Welch, 4 Cir., 179 F.2d 707, 708, has pointed out.

 " * * * In the first place, the prisoner has no right to relief by habeas corpus where the exists the right to relief under 28 U.S.C.A. § 2255; and the fact that the motion has been denied does not give the right to resort to habeas corpus, even if the movant is entitled to relief, since the remedy in such case is by appeal. Only where the remedy by motion with appeal therefrom is inadequate or ineffective to test the legality of the detention may there be resort to habeas corpus. * * *"

 The application for leave to proceed in forma pauperis for a writ of habeas corpus will be denied and order entered accordingly.


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