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UNITED STATES EX REL. WILSON v. UNITED STATES

August 31, 1971

UNITED STATES of America ex rel. Algylee Bobbe WILSON
v.
UNITED STATES of America


Body, District Judge.


The opinion of the court was delivered by: BODY

BODY, District Judge.

 Before this Court is the request of Algylee Bobbe Wilson for a writ of habeas corpus which we treat as a motion to vacate sentence under 28 U.S.C. § 2255.

 Petitioner was convicted of a violation of the Dyer Act, 18 U.S.C. § 2312, in this Court on January 30, 1970 and was sentenced on the same day to a term of imprisonment of three years and a fine of $500.00. He is presently incarcerated at the federal penitentiary at Danbury, Connecticut.

 Wilson did file a direct appeal, which was recently decided adverse to him. United States v. Wilson, 436 F.2d 122 (3d Cir., 1971). The Supreme Court has denied certiorari. Wilson v. United States, 402 U.S. 912, 91 S. Ct. 1393, 28 L. Ed. 2d 654 (1971).

 An action requesting a writ of habeas corpus filed by one who is in custody pursuant to the judgment of a federal court is improper under 28 U.S.C. § 2255, which provides that such an application shall not be entertained if it appears that the applicant has failed to apply for relief by motion to vacate sentence under that section. Walker v. United States, 429 F.2d 1301 (5th Cir. 1970); Humphries v. Ciccone, 428 F.2d 477 (8th Cir. 1970). Since petitioner's request for habeas corpus relief has been filed with the sentencing court, however, we shall treat this petition as a motion to vacate sentence under 28 U.S.C. § 2255. Paroutian v. United States, 370 F.2d 631 (2d Cir. 1967); Ruiz v. United States, 328 F.2d 56 (9th Cir. 1964); R. Sokol, Federal Habeas Corpus § 24.2 (2d ed. 1969).

 In his present petition, Wilson alleges four grounds as a basis for Section 2255 relief:

 
1) Fed. R. Crim. P. 21(b) & (c)
 
2) Punitive setting of bail
 
3) Fed. R. Crim. P. 29 (a)
 
4) Denial of due process of law

 The complete trial record is before the Court. Since we find conclusively upon a review of the record that Wilson is entitled to no relief, we decline to grant him a hearing on his petition. 28 U.S.C. § 2255.

 1) Fed. R. Crim. P. 21(b) & (c)

 This rule provides for the transfer of cases for trial upon motion of defendant "for the convenience of parties and witnesses, and in the interest of justice * * *." It was defendant Wilson, by his counsel, who requested transfer of this case from the Central District of California to the Eastern District of Pennsylvania. Accordingly, we cannot find ...


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