Malvin C. Hamilton, Appellant, v. United States of America, Appellee, 253 F.2d 421 (5th Cir. 1958)

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US Court of Appeals for the Fifth Circuit - 253 F.2d 421 (5th Cir. 1958) March 19, 1958

Malvin C. Hamilton, in pro. per., for appellant.

Harrold Carswell, U. S. Atty., Jos. P. Manners, Asst. U. S. Atty., Tallahassee, for appellee.

Before HUTCHESON, Chief Judge, and BORAH and TUTTLE, Circuit Judges.

PER CURIAM.


This appeal from an order of the trial court dismissing appellant's motion under 28 U.S.C.A. Sec. 2255, to vacate a judgment of conviction, presents the question as to the correctness of the trial judge's denial of the motion without hearing. The statute requires that upon the filing of such a petition the movant shall be entitled to a hearing unless the motion, files and record of the case conclusively show that he is entitled to no relief.

The questions presented to the trial court being either questions of law or relating to matters which must be raised by direct appeal, we concur in the action of the trial court, since the motion, files and records conclusively show that the appellant presented no basis for setting aside his judgment of conviction. As to the legal contention that a breaking and entering of a post office building with intent to commit a larceny cannot be punished separately from the stealing of postal funds, stamps, etc. found within the building, see Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370, wherein the Supreme Court expressly distinguished the post office statutes from those describing offenses against the banking laws. See also Morgan v. Devine, 237 U.S. 632, 35 S. Ct. 712, 59 L. Ed. 1153.

The judgment of the trial court is affirmed.