Summary
finding that statute providing for motion to vacate, set aside or correct sentence cannot be used to retry case or to raise questions which might have been raised upon appeal
Summary of this case from Stillwell v. U.S.Opinion
No. 7125.
Argued January 4, 1956.
Decided January 11, 1956. Writ of Certiorari Denied May 28, 1956. See 76 S.Ct. 852.
Hilliard Sanders, pro se.
William F. Mosner, Asst. U.S. Atty., Baltimore, Md. (George Cochran Doub, U.S. Atty., Baltimore, Md., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from an order denying a petition to vacate and set aside under 28 U.S.C. § 2255 the judgment and sentence of imprisonment which was affirmed by this court in Sanders v. United States, 4 Cir., 127 F.2d 647; Id., 317 U.S. 626, 63 S.Ct. 37, 87 L.Ed. 506. A similar motion was heard by the District Court in 1950, 92 F. Supp. 447, and the action of the court in denying same had been affirmed by this court. Sanders v. United States, 4 Cir., 183 F.2d 748. Appellant was represented in the trial court by counsel of his own choosing and employment and, as this court held on his appeal, was properly convicted of the crime charged against him, notwithstanding his defense of alibi. The statute upon which he bases his motion may not be used to retry the case or to raise questions which might have been raised upon appeal. There is nothing to the contrary in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 or United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 upon which appellant relies. Nothing need be added to the opinion filed by the District Judge in entering the order from which this appeal is taken. See 138 F. Supp. 192.
Affirmed.