Opinion
No. 8304.
December 9, 1965.
No appearance for appellant (Johnnie Clifford McDowell pro se on brief).
Benjamin E. Franklin, Kansas City, Kan. (Newell A. George, U.S. Atty., on brief), for appellee.
Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.
In this habeas corpus proceedings the petitioner appeals from a judgment of the trial court denying relief without a hearing on these facts.
Petitioner was convicted by a jury and sentenced in the Eastern District of Tennessee for having kidnapped and raped an eleven-year-old girl in violation of 18 U.S.C. § 1201. The conviction was affirmed, McDowell v. United States, 6 Cir., 283 F.2d 867, cert. den. 366 U.S. 937, 81 S.Ct. 1664, 6 L.Ed.2d 848, and an order denying relief under § 2255 was affirmed, 305 F.2d 12, cert. den. 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 234.
Petitioner now seeks relief by habeas corpus claiming that the remedy provided under § 2255 is inadequate and ineffective. The matters of which he now complains have either been conclusively litigated in the Circuit of his conviction, or they are yet cognizable there. The remedy under § 2255 is not inadequate or ineffective simply because the petitioner did not succeed thereunder or even though it was erroneously withheld. See Wallace v. Willingham, September 1965 Term, 10 Cir., 351 F.2d 299; Carte v. Taylor, 10 Cir., 347 F.2d 364. This appeal was, therefore, improvidently granted, and is dismissed as frivolous.