United States Ex Rel. Josey v. Humphrey, 210 F.2d 826 (3d Cir. 1954)

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US Court of Appeals for the Third Circuit - 210 F.2d 826 (3d Cir. 1954) Submitted February 18, 1954
Decided March 3, 1954

John Josey, pro se.

J. Julius Levy, Scranton, Pa., Roger A. Woltjen, Milford, Pa., for respondent.

Before MARIS, KALODNER and STALEY, Circuit Judges.


This is an appeal by the relator from an order of the district court denying his petition for a writ of habeas corpus. The relator was convicted of bank robbery on his plea of nolo contendere in the United States District Court for the Middle District of North Carolina and is now serving a term of ten years imprisonment imposed by that court. In his petition he asserts various grounds for holding his conviction invalid. It appears that prior to filing his petition for habeas corpus the relator had filed in the district court which convicted him a motion and an amended motion under section 2255 of title 28, United States Code, to vacate and set aside the judgment of conviction on similar grounds. These motions were denied and the relator failed to prosecute appeals to the United States Court of Appeals for the Fourth Circuit from the orders of denial.

In Meyers v. Welch, 4 Cir., 1950, 179 F.2d 707, 708, which involved a similar situation, Chief Judge Parker said: "We think that the application was properly denied. In the first place, the prisoner has no right to relief by habeas corpus where there 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 rule thus laid down has met with unanimous approval by the courts of appeals in which the question has arisen, Meyers v. United States, 1950, 86 U.S.App.D.C. 320, 181 F.2d 802, certiorari denied 339 U.S. 983, 70 S. Ct. 1030, 94 L. Ed. 1387; Weber v. Steele, 8 Cir., 1950, 185 F.2d 799; Weber v. Steele, 8 Cir., 1951, 191 F.2d 815; Bozell v. Welch, 4 Cir., 1953, 203 F.2d 711, certiorari denied 345 U.S. 977, 73 S. Ct. 1126, 97 L. Ed. 1391, and we, also, are in accord with it. Applying it the district court rightly denied the relator's petition for habeas corpus.

The order of the district court will be affirmed.