246 F2d 698 Bailey v. United States

246 F.2d 698

Roosevelt Q. BAILEY, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 13676-13679.

United States Court of Appeals District of Columbia Circuit.

Argued April 18, 1957.

Decided May 16, 1957.

Mr. Robert L. Heald, Washington, D. C., with whom Mr. Walter R. Powell, Jr., Washington, D. C. (both appointed by this Court), was on the brief, for appellant.

Mr. Alfred Burka, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellee.

Before DANAHER, BASTIAN and BURGER, Circuit Judges.

PER CURIAM.

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1

The appellant, represented here by court-appointed counsel, alleges that the District Court erred in denying appellant a hearing claimed to be required by 28 U.S.C. § 2255. Originally appearing pro se, appellant had filed in the District Court an ineptly styled but verified motion. Treated for what the petitioner described it, i. e., a motion for reduction of sentence, the district judge's action on the petition was proper. However, to avoid multiplicity of proceedings directed at the same ultimate objective we think the better course is to consider the petition as one filed under 28 U.S.C. § 2255, since the essential allegations are sufficiently set forth therein. The Government filed no response and raised no issue as to his allegations which, if substantiated, might entitle him to § 2255 relief. Cf. Price v. Johnston, 1948, 334 U.S. 266, 292, 68 S.Ct. 1049, 92 L.Ed. 1356. The uncontroverted factual allegations of the petition must, for present purposes, of course, be accepted as true. Even if improbable and unbelievable, an opportunity to support them by evidence was called for, construing the petition as we now do. "On this record it is his right to be heard." Walker v. Johnston, 1941, 312 U.S. 275, 287, 61 S.Ct. 574, 579, 85 L.Ed. 830; cf. Waley v. Johnston, 1942, 316 U.S. 101, 104, 62 S.Ct. 964, 86 L.Ed. 1302.

2

In these circumstances the interests of justice can best be served by remanding the petition for further proceedings not inconsistent herewith and the order of the District Court is reversed for that purpose.

3

Reversed and remanded.