Broadway Arrington v. John T. Willingham Warden, United States Penitentiary, Leavenworth, Kansas

Tenth Circuit

Broadway Arrington v. John T. Willingham Warden, United States Penitentiary, Leavenworth, Kansas

362 F.2d 803, 1966 U.S. App. LEXIS 5843

CourtCourt of Appeals for the Tenth Circuit

DecidedJune 14, 1966

Docket8617

StatusPublished

Cited by2 cases

This text of 362 F.2d 803 (Broadway Arrington v. John T. Willingham Warden, United States Penitentiary, Leavenworth, Kansas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Broadway Arrington v. John T. Willingham Warden, United States Penitentiary, Leavenworth, Kansas, 362 F.2d 803, 1966 U.S. App. LEXIS 5843 (10th Cir. 1966).

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Opinion

PER CURIAM.

Appellant, a federal prisoner, appeals from a dismissal, without a hearing, of his petition for habeas corpus.

Appellant was convicted upon his plea of guilty of conspiracy to violate the Narcotics Act and he was sentenced on June 27, 1963, in the United States District Court for the Northern District of Illinois, Eastern Division, to a term of twelve years. Subsequently, in 1964, appellant was convicted by a jury of five counts of perjury and received three year concurrent sentences on each count, said sentences to be consecutive to the sentence imposed on the narcotics offense.

In 1965, appellant attacked the above sentences in the proper sentencing court in Illinois under 28 U.S.C. § 2255, but the relief sought was denied. The petition filed below alleged that all issues raised had previously been presented to the sentencing court. It was after a determination there that he filed the petition below which was denied on the ground that Section 2255 is appellant’s exclusive remedy unless inadequate or ineffective and no such showing was made by the petition.

Appellant points out that he filed a 2255 motion in the sentencing court, raising there the questions presented in his petition filed below, and that the sentencing court denied his motion without a *804 hearing. Upon these facts he further contends, as a matter of law, that his remedy under Section 2255 is inadequate and ineffective, thereby giving him standing to bring this habeas corpus proceeding. The answer to this contention is that if the sentencing court erred in denying the 2255 motion without a hearing appellant had the right of appeal to correct the error. Such denial of the motion is not a sufficient showing to compel us to conclude that the 2255 remedy is inadequate or ineffective. 1

The order of the trial court dismissing the petition is affirmed.

1

. Sanchez v. Taylor, 10 Cir., 302 F.2d 725; Black v. United States, 10 Cir., 301 F.2d 418; Williams v. United States, 10 Cir., 283 F.2d 59; Clough v. Hunter, 10 Cir., 191 F.2d 516; Barrett v. Hunter, Warden, 10 Cir., 180 F.2d 510, 20 A.L.R.2d 965.

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PER CURIAM.

Appellant, a federal prisoner, appeals from a dismissal, without a hearing, of his petition for habeas corpus.

Appellant was convicted upon his plea of guilty of conspiracy to violate the Narcotics Act and he was sentenced on June 27, 1963, in the United States District Court for the Northern District of Illinois, Eastern Division, to a term of twelve years. Subsequently, in 1964, appellant was convicted by a jury of five counts of perjury and received three year concurrent sentences on each count, said sentences to be consecutive to the sentence imposed on the narcotics offense.

In 1965, appellant attacked the above sentences in the proper sentencing court in Illinois under 28 U.S.C. § 2255, but the relief sought was denied. The petition filed below alleged that all issues raised had previously been presented to the sentencing court. It was after a determination there that he filed the petition below which was denied on the ground that Section 2255 is appellant’s exclusive remedy unless inadequate or ineffective and no such showing was made by the petition.

Appellant points out that he filed a 2255 motion in the sentencing court, raising there the questions presented in his petition filed below, and that the sentencing court denied his motion without a *804 hearing. Upon these facts he further contends, as a matter of law, that his remedy under Section 2255 is inadequate and ineffective, thereby giving him standing to bring this habeas corpus proceeding. The answer to this contention is that if the sentencing court erred in denying the 2255 motion without a hearing appellant had the right of appeal to correct the error. Such denial of the motion is not a sufficient showing to compel us to conclude that the 2255 remedy is inadequate or ineffective. 1

The order of the trial court dismissing the petition is affirmed.

1

. Sanchez v. Taylor, 10 Cir., 302 F.2d 725; Black v. United States, 10 Cir., 301 F.2d 418; Williams v. United States, 10 Cir., 283 F.2d 59; Clough v. Hunter, 10 Cir., 191 F.2d 516; Barrett v. Hunter, Warden, 10 Cir., 180 F.2d 510, 20 A.L.R.2d 965.

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362 F.2d 803, 1966 U.S. App. LEXIS 5843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broadway-arrington-v-john-t-willingham-warden-united-states-ca10-1966.

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