223 F2d 259 Brassell v. United States

223 F.2d 259

Frederick Harvey BRASSELL, Appellant,


UNITED STATES of America, Appellee.

No. 15443.

United States Court of Appeals Fifth Circuit.

June 15, 1955.

No attorney for appellant.

William C. Calhoun, U. S. Atty., Augusta, Ga., Donald H. Fraser, Asst. U. S. Atty., Savannah, Ga., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.


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The only question presented to the court here is whether the District Court properly denied appellant's motion filed under 28 U.S.C.A. § 2255, to test the legality of his detention and in which the District Court declined to grant a hearing, finding as it did that the motion, files and records conclusively showed that appellant was entitled to no relief.


The basis of appellant's motion was that in an indictment charging him with having escaped while in federal custody, the indictment gave as the date of the criminal warrant under which he was held as August 18, 1952; whereas, he was actually in custody following a conviction of an offense that was committed on September 12, 1952.


Since there is no question raised as to the legality of appellant's conviction and sentence, it is immaterial that the indictment charging his escape while being held under such sentence incorrectly alleged the date of the criminal warrant for his original arrest. Wilson v. Hudspeth, 10 Cir., 106 F.2d 812.


The judgment is therefore