416 F2d 1254 Lenhardt v. United States

416 F.2d 1254

Roberto A. LENHARDT, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 27912.

United States Court of Appeals Fifth Circuit.

October 9, 1969.

Roberto A. Lenhardt, pro se.

Charles L. Goodson, U. S. Atty., Theodore E. Smith, Asst. U. S. Atty., Atlanta, Ga., for defendant-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

PER CURIAM:

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1

In this pro se case appellant has failed to file a brief within the time fixed by Rule 31, F.R.A.P., and it is therefore appropriate to dispose of this case summarily pursuant to Rule 9(c) (2) of this Court. Stout v. Broom, 5th Cir. 1969, 406 F.2d 758.

2

Appellant is presently incarcerated in the federal penitentiary in Atlanta, having been convicted on his plea of guilty to three counts of violating 18 U.S.C. § 1709, theft of mail by a postal employee. He was convicted and sentenced in the District Court for the Southern District of Georgia. He has filed a petition for habeas corpus in the District Court for the Northern District of Georgia. In this petition appellant alleges denial of due process in that his sentence is indeterminable owing to the confusion of the sentencing court. The district court dismissed the petition, stating that the proper remedy for appellant is a motion pursuant to 28 U.S.C. § 2255, filed in the sentencing court. We agree.

3

As the district court stated,

4

"A motion under 28 U.S.C.A. § 2255 is a substitute for writ of habeas corpus providing an exclusive remedy in the sentencing court for any errors occurring at or prior to sentencing, including construction of the sentence itself. United States v. Hayman, 342 U.S. 205 [72 S.Ct. 263, 96 L.Ed. 232] (1952); Birchfield v. United States, 296 F.2d 120 (5th Cir. 1961)."

5

The judgment of the court below is affirmed.

6

Affirmed.