Johnson v. Swope

HARRIS, District Judge. Petitioner seeks his release from Alcatraz penitentiary by means of his petition for writ of habeas corpus. He challenges the validity of the sentence imposed on one of two counts by the trial court April 18, 1944. Petitioner alleges that he is unable to comply with the requirements of 28 U.S. C.A. § 2255, which section specifies that a prisoner must move the court which imposes the sentence to correct such sentence. Petitioner asserts that the intervening death of the trial judge who imposed sentence prevents him from seeking the relief provided for. The language of the section establishes the fact that petitioner is in error: “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States * * * may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Thus the section requires a petitioner to make his motion before the court which imposed the sentence. No mention is made of the judge who presided over the trial and who, in turn, meted out the sentence. Despite the death of Judge Helvering, petitioner is compelled in accordance with the language of 28 U.S.C.A. § 2255 to seek relief under that section. Accordingly, it is ordered that the petition for writ of habeas corpus he, and the same hereby is, denied.1 Footnotes [1] Birtch v. United States, 4 Cir., 173 F.2d 316; United States v. Calp, D.C., 83 F.Supp. 152.