Charles L. Mohler, Appellant, v. United States of America, Appellee, 363 F.2d 383 (10th Cir. 1966)

James H. DeCoursey, Jr., Kansas City, Kan., for appellant.

Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on brief), for appellee.

Before BREITENSTEIN and HILL, Circuit Judges, and LANGLEY, District Judge.

LANGLEY, District Judge.

The appellant, an inmate of the United States Penitentiary at Leavenworth, Kansas, filed a petition for writ of habeas corpus in the United States District Court for the District of Kansas which was dismissed without a hearing for the reason that "* * * it is not made to appear that the remedy by motion under 28 U.S.C.A. 2255 is inadequate or ineffective to test the legality of the petitioner's present detention". After denying a motion for rehearing, the District Court entered an order denying appellant leave to proceed on appeal in forma pauperis and certified that an appeal was not being taken in good faith. The appellant has appealed from this order.

We have reviewed the record and considered the appeal on its merits and agree with the trial court that the appellant's contentions are entirely without substance. In our opinion the petition for writ of habeas corpus was properly dismissed for the reasons given. Appellant is confined pursuant to sentence imposed by the United States District Court for the Eastern District of Illinois after pleas of guilty to charges of interstate transportation of a stolen motor vehicle and receiving a stolen motor vehicle moving in interstate commerce. Subsequent to his sentence, the appellant filed in that court, pursuant to 28 U.S.C. § 2255, a motion to vacate the sentence, which was denied. The motion was pending on appeal in the United States Court of Appeals for the Seventh Circuit, 360 F.2d 915 at the time the petition for writ of habeas corpus was filed. As grounds for issuance of the writ, appellant alleges failure of the Clerk of the United States District Court for the Eastern District of Illinois to comply with an order of the Court of Appeals directing that appellant be furnished a copy of the transcript of the hearing for use in connection with his appeal, in violation of his constitutional rights, and loss of jurisdiction by reason thereof. We have every reason to suppose that both the United States District Court for the Eastern District of Illinois and the United States Court of Appeals for the Seventh Circuit are now and at all times heretofore have been ready and willing to correct any infringement of the appellant's constitutional rights that may have occurred in the course of his litigation in those courts, upon such a showing. Certainly there is nothing in this record to indicate otherwise, or loss of jurisdiction through neglect. The petitioner has stated no proper basis for consideration of a petition for writ of habeas corpus upon its merits.

Affirmed.