David O. Warner, Appellant, v. D. M. Heritage, Warden, United States Penitentiary, Mcneil Island, Washington, Appellee, 256 F.2d 502 (9th Cir. 1958)

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U.S. Court of Appeals for the Ninth Circuit - 256 F.2d 502 (9th Cir. 1958)

May 27, 1958

David O. Warner in pro. per.

Charles P. Moriarty, U. S. Atty., Seattle, Wash., Charles Billinghurst, Asst. U. S. Atty., Tacoma, Wash., for appellee.

Before STEPHENS, Chief Judge, and DENMAN and BARNES, Circuit Judges.


Warner appeals from the denial of his application for a writ of habeas corpus seeking his release from imprisonment on conviction of murder in the second degree by the United States District Court for the District of Alaska. He contends that the remedy by motion under § 2255 "is inadequate or ineffective to test the legality of his detention."

Warner claims that he is entitled to a remedy by habeas corpus because he has filed five different proceedings under 28 U.S.C. § 2255 in the District Court of Alaska in each of which his motion was denied and his motion to appeal in forma pauperis denied by the District Court. However, in but one of the five cases did he move this court to appeal in forma pauperis, and in that one case the motion was made after the time for appeal had expired.

We think no inadequacy to test the legality of Warner's rights under § 2255 is shown.