Opinion
No. 8809.
January 11, 1967.
George W. Smeltzer, Denver, Colo., for appellant.
John E. Green, Asst. U.S. Atty. (B. Andrew Potter, U.S. Atty., and Michael C. Stewart, Asst. U.S. Atty., on the brief), for appellee.
Before PICKETT and HILL, Circuit Judges, and CHILSON, District Judge.
The appeal is from an order entered, without an evidentiary hearing, upon a post trial motion filed by appellant, which motion was considered by the court as one filed pursuant to 28 U.S.C. § 2255.
The allegations of the motion may be summarized as an attack upon the sufficiency of the evidence to support the jury verdict of guilty rendered against appellant in a previously tried criminal case. It clearly constitutes a collateral attack upon the judgment of conviction and does not constitute sufficient grounds for relief under § 2255.
Carrillo v. United States, 10 Cir., 332 F.2d 292 and cases there cited.
Appellant's brief raises the question of an attempt by him to take an appeal from the judgment of conviction and sentence. This question was not raised by the motion filed in the trial court and is raised here for the first time. Therefore, we are precluded from considering the point. It may still be appropriately presented to the trial court.
Affirmed.