Opinion
No. 17115.
June 17, 1958.
J.L. Steinberg, in pro. per. for appellant.
William C. Calhoun, U.S. Atty., Augusta, Ga., for appellee.
Before HUTCHESON, Chief Judge, and JONES and WISDOM, Circuit Judges.
Moving in the sentencing court under Sec. 2255, 28 U.S.C.A. to vacate the judgment and sentence theretofore imposed upon him, petitioner alleged facts, some of them not of record, which entitled him to a hearing on their truth or falsity. Motley v. United States, 5 Cir., 230 F.2d 110, and, if established as true, to relief. Instead of affording him a hearing, the district judge, stating in his order: "It appears that the motion and the files and records of this case conclusively show that the petitioner is entitled to no relief.", denied the relief sought. In doing this he erred and the judgment must be reversed with directions to afford the petitioner a hearing and for further and not inconsistent proceedings.