Opinion
No. 16891.
October 20, 1961.
Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.
Appellant's motion under 28 U.S.C.A. § 2255, to have his sentences vacated was denied without a hearing. He was permitted to file notice of appeal without payment of fee, but was denied leave to proceed further in forma pauperis on the ground that the appeal was without merit and so not taken in good faith. He challenges here this certificate of the trial court, and seeks leave from us to prosecute the appeal in forma pauperis.
All of the questions attempted to be raised, with one exception, are matters which are not open to consideration on a motion under § 2255, but would be cognizable only on an appeal from the judgment of conviction.
The single question which might be raised on a motion under § 2255 is a contention that part of the evidence on the trial consisted of perjured testimony. The motion, however, does not allege that the testimony claimed to be perjured was used by the prosecution with knowledge of its falsity. In fact, it does not even specify or detail what the testimony was, so as to indicate its significance. In these circumstances, there was no issue presented requiring a hearing.
The United States has filed a motion to docket and dismiss the appeal as frivolous, and this motion will be granted.
Appeal dismissed.