227 F2d 48 Williams v. United States

227 F.2d 48

Leonard WILLIAMS, Appellant,

v.

UNITED STATES of America, Appellee.

No. 15550.

United States Court of Appeals Fifth Circuit.

Nov. 10, 1955.

Leonard Williams, in pro. per.

William O. Braecklein, Asst. U.S. Atty., Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

PER CURIAM.

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1

Appealing from an order denying without a hearing his petition for relief under Section 2255, 28 U.S.C., petitioner invoking United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232; Ziebart v. United States, 5 Cir., 185 F.2d 124, and Sanders v. United States, 5 Cir., 205 F.2d 399, is here insisting that the order is without support in law and must be reversed. We agree.

2

Appellee, alleging that the District Court, from which this appeal comes, had entered an order granting petitioner in hearing on his motion and providing for his presence at the hearing and thus in effect acknowledged error, moved to dismiss the appeal as moot.

3

While we agree that the motion in effect confesses error, we cannot agree that the matters alleged in it render the appeal moot, and the motion to dismiss the appeal is denied.

4

The order appealed from is Reversed and the cause is Remanded with directions to afford petitioner the hearing heretofore sought by, and denied to him, and now ordered by the court, and for other and further proceedings not inconsistent herewith.