OpenJurist

257 F2d 424 Juelich v. United States

257 F.2d 424

Herbert Eugene JUELICH and Lewis Woodard Larson, Appellants,
v.
UNITED STATES of America, Appellee.

No. 13424.

United States Court of Appeals Sixth Circuit.

June 26, 1958.

Certiorari Denied October 13, 1958.

See 79 S.Ct. 72.

Robert D. Leggett, Cincinnati, Ohio, for appellants.

Andrew M. Gant, Jr., Nashville, Tenn., for appellee.

Before MARTIN, MILLER and STEWART, Circuit Judges.

PER CURIAM.

1

In 1953 the appellants were sentenced to five-year prison terms upon their pleas of guilty to an indictment charging them with interstate transportation of a stolen automobile. In 1956 they filed motions to vacate the sentences upon the ground that their pleas of guilt had been coerced. These appeals followed the district court's denial of the motions.

2

In denying the motions the district court correctly pointed out: "The transcript of the record demonstrates conclusively that the petitioners were carefully interrogated by the District Judge with respect to the offense; that a competent attorney was appointed to represent them; that they discussed their offense freely, openly and voluntarily; that they were fully aware of their rights; and that they freely admitted their guilt, in effect stating that they expected to receive a severe sentence. No intimation whatever was made by them to the effect that they had been coerced into pleading guilty or that the plea of guilty did not represent the exercise of their own free will and judgment."

3

There is another and even more cogent reason why the motions were properly denied. At the time of the district court's order the appellants had completed service of the sentences to which their motions were directed. "[T]he right to relief under [28 U.S. C.A.] Sec. 2255 is limited by the express terms of the statute to situations where the prisoner is attacking the judgment under which he is in custody and, if successful, would be entitled to be released." Duggins v. United States, 6 Cir., 1957, 240 F.2d 479, at page 484. "If a prisoner has already served the sentence which he is attacking by a proceeding under Sec. 2255, he is not in custody under that sentence and cannot maintain the proceeding." Id., at page 482.

4

The order of the district court is affirmed.