United States ex rel. Pope v. Parker

258 F. Supp. 478, 1966 U.S. Dist. LEXIS 6734

• Court: District Court, M.D. Pennsylvania
• Decided: September 16, 1966
• Docket: No. 807
• Status: Published

Opinion

MEMORANDUM

FOLLMER, District Judge.

James T. Pope, a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, has submitted, in forma pauperis, a petition for writ of habeas corpus. Petitioner was sentenced by the United States District Court for the Eastern District of Pennsylvania. His petition alleges that certain errors occurred prior to sentencing.

However, on page 4 of his petition, Pope first states that he has filed no motions under 28 U.S.C. § 2255, but then states that he has filed three (3) habeas corpus petitions in the Eastern District, (Mise. Nos. 3141, 3215 and 3265) all of which have been denied. He also states that he believes his sentencing court “would be too prejudiced.”

Since it is unclear as to whether all grounds alleged have been presented to the sentencing court, there is nothing to indicate that his remedy by motion to the sentencing court pursuant to 28 U.S.C. § 2255 is not fully adequate. Frazier v. Blackwell, 325 F.2d 154 (3d Cir. 1963). The mere allegation that petitioner believes the sentencing court would be too prejudiced, with no supporting facts, does not make the remedy by motion under § 2255 inadequate or ineffective to test the legality of his detention. Moreover, failure to obtain relief under § 2255 does not establish that the remedy so provided is either inadequate or ineffective. Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963), cert. denied, 377 U.S. 980, 84 S.Ct. 1887, 12 L.Ed.2d 749 (1964); Birchfield v. United States, 296 F.2d 120, 122 (5th Cir. 1961).

Accordingly, the request to proceed in forma pauperis will be denied, the petition for writ of habeas corpus will be dismissed and the request for appointment of counsel will be denied.