Rehearing Denied March 15 1950.: February 14, 1950.
Before PHILLIPS, Chief Judge, and BRATTON, HUXMAN, MURRAH and PICKETT, Circuit Judges.
These are appeals from orders denying applications for writs of habeas corpus.
In Number 3954, the application for the writ alleged that Barrett was confined in the United States Penitentiary, at Leavenworth, Kansas; that an information was filed in the United States District Court for the Northern District of Texas charging that Barrett unlawfully escaped from the Federal Correctional Institution, at Seagoville, Texas; that Barrett pleaded guilty to the charge and was sentenced to imprisonment for a term of five years; that about one year after the imposition of sentence, Barrett filed a motion in the sentencing court to vacate the waiver of indictment signed by him, the plea of guilty entered to the information, and the sentence imposed; that "the court denied the motion without hearing any evidence, and your petitioner appealed," and that "This was denied also"; that intermediate to his arrest and his appearance before the sentencing court, Barrett was confined in the Federal Correctional Institution in solitary confinement and held incommunicado; that he was not versed in law or criminal procedure; that he had no opportunity to learn of his constitutional or legal rights; that he did not effectively waive his rights to the assistance of counsel; that he did not have the benefit of counsel at the time he signed the waiver of indictment; that such waiver was not signed in open court; that he did not have the benefit of counsel at the time he entered the plea of guilty; that at the time of his alleged escape, he was being held by virtue of a commitment issued by the United States Parole Board at Washington, D.C.; that the order revoking his parole was unlawful becuase he was then a member of the Armed Forces; that he was never brought before a United States Commissioner, and was held in custody for approximately two weeks before he was brought before the sentencing court, and had no opportunity to prepare a defense.
In Number 3978, Rutledge, in his application for the writ, alleged that he was confined in the United States Penitentiary, at Leavenworth, Kansas, by virtue of a judgment and sentence of the United States District Court for the Western District of Missouri; that the sentence was imposed for an alleged violation of the Federal Escape Act, 18 U.S.C.A. § 751; that he was denied the right of trial by jury; that counsel appointed by the sentencing court to represent him in the criminal proceeding did not enter a plea of guilty on his behalf; that an attorney appointed by the sentencing court to represent Rutledge's codefendant entered a plea of guilty for both the codefendant and Rutledge; that Rutledge made an oral statement in open court denying that he was guilty of the offense charged; that he filed a motion to vacate the sentence in the sentencing court, and that such motion was overruled March 15, 1949. He did not appeal from the order denying such motion.
In Number 3954, the trial court denied the application for the writ on the ground that the motion to vacate the sentence, filed under 28 U.S.C.A. § 2255, had been denied and that the allegations in the application for the writ failed to allege facts showing that the remedy under § 2255 was inadequate or ineffective to test the legality of Barrett's detention.
In Number 3978, the trial court sustained a motion to dismiss the application for the writ on the ground that the application failed to show that Rutledge had appealed from the order denying his motion to vacate, and that such motion had been denied, and that the allegations in the application for the writ failed to show the remedy under § 2255 was inadequate or ineffective to test the legality of Rutledge's detention.
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
"A motion for such relief may be made at any time.
"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
"A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
"The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
"An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
"An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that ...