Opinion
No. 6644.
April 18, 1961. Rehearing Denied May 3, 1961.
Robert H. Sonheim, Denver, Colo., for appellant.
George T. VanBebber, Kansas City, Kan. (Newell A. George, Kansas City, Kan., was with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
In this appeal from the order of the United States District Court for the District of Kansas denying his application for a writ of habeas corpus, the appellant asserts that 28 U.S.C. § 2255 does not afford him an adequate or effective remedy. He is presently in Leavenworth Penitentiary serving a sentence imposed for interstate transportation of forged checks and a conspiracy to do so, after affirmance of his conviction in the Fifth Circuit. Moore v. United States, 5 Cir., 250 F.2d 658, certiorari denied 356 U.S. 956, 78 S.Ct. 998, 2 L.Ed.2d 1071.
Following the affirmance on appeal, he filed a motion in the sentencing court under § 2255, which was denied, and leave to appeal in forma pauperis was denied in both the trial and appellate courts. Certiorari denied Moore v. United States, 363 U.S. 858, 80 S.Ct. 1622, 4 L.Ed.2d 1739.
In its order denying this petition for a writ of habeas corpus, the trial court held that § 2255 provided the petitioner an adequate and effective means of testing the validity of his sentence; and that he was presenting the identical issues which had been decided adversely to him in the prior proceedings.
The remedy provided by § 2255 is "not inadequate or ineffective simply because the petitioner has unsuccessfully sought relief under it." Barrett v. United States, 10 Cir., 285 F.2d 758, 759; Williams v. United States, 10 Cir., 283 F.2d 59. And the denial of petitioner's appeal in forma pauperis does not render the remedy afforded under § 2255 ineffectual. An appeal in forma pauperis is a privilege, not a right, the denial of which has no effect upon the adequacy of a motion under § 2255. Clough v. Hunter, 10 Cir., 191 F.2d 516.
The order appealed from is affirmed.