James Edward Wingo, Jr. v. United States

Sixth Circuit

James Edward Wingo, Jr. v. United States

244 F.2d 800, 1957 U.S. App. LEXIS 3169

CourtCourt of Appeals for the Sixth Circuit

DecidedMay 31, 1957

Docket18-2105

StatusPublished

Cited by7 cases

This text of 244 F.2d 800 (James Edward Wingo, Jr. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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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James Edward Wingo, Jr. v. United States, 244 F.2d 800, 1957 U.S. App. LEXIS 3169 (6th Cir. 1957).

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Opinion

PER CURIAM.

Appellant, in this proceeding under Section 2255, Title 28 U.S.Code, seeks to vacate judgment imposed in the U. S. District Court on the ground of prejudicial newspaper publicity during the overnight recess of the jury, during which the jurors separated and went to their respective homes. Briggs v. United States, 6 Cir., 221 F.2d 636, 638. Following a hearing in which appellant introduced the newspaper articles complained of but no other evidence on the issue, the District Judge dismissed the proceeding.

The question presented could have and should have been raised by motion for mistrial in the trial of the case in the District Court. No appeal was taken from the judgment on the verdict. Compare Briggs v. United States, supra; Krogmann v. United States, 6 Cir., 225 F.2d 220, 228. The provisions of Section 2255, Title 28 U.S.Code, cannot be used as a substitute for appeal. Sunal v. Large, 332 U.S. 174, 178-179, 67 S.Ct. 1588, 91 L.Ed. 1982; Ford v. United States, 6 Cir., 234 F.2d 835, 836.

The appellant is in custody under a state sentence, not the sentence in the federal court, which he is attacking in this proceeding. If the sentence under attack should be held invalid, it would not result in appellant’s release from confinement. The present proceeding is premature and will not lie. Duggins v. United States, 6 Cir., 240 F.2d 479.

The judgment is affirmed.

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PER CURIAM.

Appellant, in this proceeding under Section 2255, Title 28 U.S.Code, seeks to vacate judgment imposed in the U. S. District Court on the ground of prejudicial newspaper publicity during the overnight recess of the jury, during which the jurors separated and went to their respective homes. Briggs v. United States, 6 Cir., 221 F.2d 636, 638. Following a hearing in which appellant introduced the newspaper articles complained of but no other evidence on the issue, the District Judge dismissed the proceeding.

The question presented could have and should have been raised by motion for mistrial in the trial of the case in the District Court. No appeal was taken from the judgment on the verdict. Compare Briggs v. United States, supra; Krogmann v. United States, 6 Cir., 225 F.2d 220, 228. The provisions of Section 2255, Title 28 U.S.Code, cannot be used as a substitute for appeal. Sunal v. Large, 332 U.S. 174, 178-179, 67 S.Ct. 1588, 91 L.Ed. 1982; Ford v. United States, 6 Cir., 234 F.2d 835, 836.

The appellant is in custody under a state sentence, not the sentence in the federal court, which he is attacking in this proceeding. If the sentence under attack should be held invalid, it would not result in appellant’s release from confinement. The present proceeding is premature and will not lie. Duggins v. United States, 6 Cir., 240 F.2d 479.

The judgment is affirmed.

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244 F.2d 800, 1957 U.S. App. LEXIS 3169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-edward-wingo-jr-v-united-states-ca6-1957.

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