Opinion
Harry Smith pro se.
William H. Murdock, U.S. Atty., R. Roy Mitchell, Jr., Asst. U.S. Atty., Greensboro, N.C., for the Government.
WYCHE, District Judge (sitting by designation). The petitioner, Harry Smith, has moved the Court, pursuant to the provisions of 28 U.S.C.A. § 2255, to vacate his sentence of imprisonment.
On April 17, 1961, petitioner was one of four defendants charged in this Court in a two-count indictment with attempting to escape from the custody of the United States Marshal at their place of confinement at Albemarle, North Carolina. At this time the petitioner and his co-defendants were furnished copies of the bill of indictment and the Court explained the right of each defendant to have an attorney at every stage of the proceeding, and at which time the Court appointed competent counsel to represent them. In due course, the petitioner entered a plea of not guilty but subsequently, on April 18, 1961, through his Court-appointed counsel, filed a written jury waiver.
Subsequently two of the four defendants changed their plea to guilty to one of the counts in the indictment, the remaining count being dismissed.
On April 19, 1961, the case was called for trial before the Court as to the petitioner and the remaining defendant; the Court by its verdict found petitioner guilty as charged in the bill of indictment and imposed a four-year prison sentence. No appeal was taken from the conviction.
The sole basis for this motion which the petitioner has filed under 28 U.S.C.A. 2255 is that the petitioner was convicted on the testimony of a Government witness who was not present at the time of the attempted escape.
It is uniformly held that a motion under 28 U.S.C.A. § 2255 may not be used to retry a case or to raise questions which might have been raised on appeal. Sanders v. United States, 4 Cir., 230 F.2d 127 (1956). It is further uniformly held that a motion under 28 U.S.C.A. § 2255 is a collateral proceeding in which errors in procedure on the initial trial of the case are not open for review. Way v. United States, 10 Cir., 276 F.2d 912 (1960); United States v. Lyons, 2 Cir., 256 F.2d 749 (1958). If the Court committed error in admitting certain testimony complained of by the petitioner, the petitioner could have appealed from his judgment and sentence. Since no such appeal was taken, facts now attempted to be presented to the Court by the instant motion are insufficient to support a motion to vacate a sentence under 28 U.S.C.A. § 2255. Turner v. United States, 8 Cir., 262 F.2d 643 (1959).
Since the motion and the files and the records of the case conclusively show that the petitioner is entitled to no relief, there is no occasion for a hearing on the allegations contained in the motion.
For the reasons set forth, it is ordered that the motion be and the same is hereby denied.
It is further ordered that a certified copy of this order be mailed to the petitioner herein by the Clerk of this Court.