271 F2d 278 Hamilton v. T Wilkinson

271 F.2d 278

Malvin Chester HAMILTON, Appellant,
Fred T. WILKINSON, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.

No. 17708.

United States Court of Appeals Fifth Circuit.

November 10, 1959.

Wm. T. Brooks, Atlanta, Ga., and Malvin Chester Hamilton, in pro. per., for appellant.

E. Ralph Ivey, Asst. U. S. Atty., and Charles D. Read, Jr., Acting U. S. Atty., Atlanta, Ga., for appellee.

Before HUTCHESON, TUTTLE and WISDOM, Circuit Judges.


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This is an appeal from the denial of a petition for writ of habeas corpus. The petitioner had previously filed a petition to vacate the judgment of conviction which is the basis of the present proceeding. In Hamilton v. United States, 5 Cir., 253 F.2d 421, we affirmed that denial. In the petition presented to the trial court in the pending case the same grounds were alleged as a basis for attacking the validity of his judgment of conviction as were alleged in the Section 2255 proceeding. There was a further allegation, however, that the appellant's trial counsel proved to be wholly incompetent. The trial court pointed out that the complaint showed on its face that trial counsel had been employed by the appellant's family, and held that this additional ground was not sufficient to require a hearing on the habeas corpus petition. We have repeatedly held that when a Section 2255 or habeas corpus petition attacks a judgment of conviction merely on the ground of incompetence of a defendant's personally engaged attorney, no basis is laid for granting the extraordinary relief provided for in Section 2255 or by habeas corpus. Since this Court has already passed on the other grounds, the trial court was clearly correct in holding that they do not present a basis for the granting of relief in a habeas corpus proceeding.


The judgment is affirmed.