268 F2d 77 Arlen v. R Hagan

268 F.2d 77

George V. ARLEN, Appellant,
Charles R. HAGAN, Warden, United States Penitentiary,
Lewisburg, Pennsylvania.

No. 12883.

United States Court of Appeals Third Circuit.

Submitted May 26, 1959.
Decided June 15, 1959.

George V. Arlen pro se.

W. Wilson White, Asst. Atty. Gen., Harold H. Greene, Lucille A. Joy, Dept. of Justice, Washington, D.C., Daniel H. Jenkins, U.S. Atty., Scranton, Pa., for appellee.

Before BIGGS, Chief Judge, and KALODNER and STALEY, Circuit Judges.


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The petitioner-appellant is in prison by reason of a federal sentence. See United States v. Arlen, 2 Cir., 1958, 252 F.2d 491. He asserts that he was forced to trial in the United States District Court in the Western District of New York without the aid and advice of counsel and therefore he was denied the right to effective assistance by counsel as guaranteed by the Sixth Amendment. This assertion was passed on in United States v. Arlen, supra. It is well established that any collateral attack upon a judgment of conviction under these circumstances must be made by motion under 28 U.S.C. § 2255, rather than by way of a petition for a writ of habeas corpus. United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. See also United States ex rel. Josey v. Humphrey, 3 Cir., 1954, 210 F.2d 826. Since the petitioner-appellant has not made such an application to the court which imposed the sentence the relief which he seeks cannot be granted him. Consequently the judgment of the court below will be affirmed.