Nelson v. Looney, 211 F.2d 89 (10th Cir. 1954)

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US Court of Appeals for the Tenth Circuit - 211 F.2d 89 (10th Cir. 1954) March 13, 1954

Ralph M. Clark, Denver, Colo., for appellant.

George Templar, U. S. Atty., Arkansas City, Kan., for appellee.

Before HUXMAN, MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

Holding the remedy afforded petitioner under 28 U.S.C.A. § 2255 exclusive, the trial court dismissed this application for writ of habeas corpus and remanded the Appellant to the custody of the warden of the United States Penitentiary at Leavenworth, Kansas. We agree.

The Appellant pleaded guilty to an indictment containing four counts charging the transportation in interstate commerce of four falsely made, forged and counterfeited checks in violation of 18 U.S.C.A. § 2314. After commitment, Appellant filed a motion to vacate under § 2255 alleging that he had not committed the offense charged and that he had been misled and deceived into pleading guilty.

After extended hearings in which the petitioner appeared in person and testified, being represented by court-appointed counsel, the trial court denied the motion to vacate and denied the application to appeal forma pauperis. No further action was taken in that case.

This application for a writ of habeas corpus is based upon a repetition of the same allegations asserted in the motion to vacate with the additional complaint that the remedy afforded under § 2255 is "inadequate and ineffectual" for the reason that he was not accorded a full hearing and was denied appeal.

The short and conclusive answer to the contention is that he is now held in confinement under color of a judgment and sentence of the sentencing court which he has not shown to have fully served, and therefore habeas corpus is not available. See Holloway v. Looney, 10 Cir., 1953, 207 F.2d 433; Smith v. United States, 10 Cir., 1953, 205 F.2d 768; Kreuter v. United States, 10 Cir., 1952, 201 F.2d 33; Clough v. Hunter, 10 Cir., 1951, 191 F.2d 516; Barnes v. Hunter, 10 Cir., 1951, 188 F.2d 86.

The judgment is affirmed.