Smith v. United States

¶4PER CURIAM.

¶5Indicted November 13, 1931, along with Hugh A. Bowen and William Frank Bowen, for the murder on December 14, 1930, of one Raymond Kington in Chick-amauga National Park, appellant moved for, and was granted, a severance. On February 13, 1933, represented by competent counsel, of whose representation he does not complain, he went to trial, a verdict of guilty without capital punishment was returned, and judgment imposing a life sentence was entered on February 16, 1933. Appellant, through counsel, filed a motion for a new trial which was argued by counsel for appellant and by the Government and overruled and denied by Judge Underwood on May 18, 1933. Appellant did not appeal.

¶6More than twenty years later appellant filed a motion, which was in effect and was treated by the court as, a motion to vacate sentence under 28 U.S.C.A. § 2255, *370in which and as amended, appellant set forth fourteen different grounds.

¶7Listing and dealing with all of them in his findings and conclusions,1 the district *371judge found no merit in them and entered judgment denying the motion.

¶8Appealing therefrom, appellant is here presenting seven grounds of error2 and arguing that, though the court gave him a hearing, it was an insufficient one and the judgment entered thereon should be reversed.

¶9Citing many cases3 from this and other courts in support of the settled rule that See. 2255 was enacted as a substitute for and to serve the purpose, not of an appeal, but of a proceeding for habeas corpus, that it applies only where the sentence is void or otherwise subject to collateral attack, and that it may not be used to retry the case or correct errors reviewable on appeal, though they relate to claimed breaches of constitutional rights, the United States takes up and argues seriatim appellant’s claims of error. Urging upon us that the motion does not allege, and if in any particular it does, the record is wholly devoid of, facts sufficient to support the collateral attack he seeks to make on the judgment, it insists that the judgment must be affirmed.

¶10In connection with the general claim that the prosecution colluded with the witness to commit perjury, appellant, invoking the rule of the cases, that the burden was on the plaintiff to allege and prove, not conclusions, but facts which would entitle him to relief, and citing Ryles v. United States, 10 Cir., 198 F.2d 199, holding that false testimony without more will not serve, that it must be shown (1) that there was use of perjured testimony, and (2) that it was with the knowledge of the prosecuting officers, insists that, while there was a specific claim that Laura Smith gave perjured testimony, there was no basis shown for the charge except plaintiff’s own conclusion, and the court rightly rejected this.

¶11We agree that this is so.

¶12Of appellant’s insistence here that the court erred in not directing the summoning of witnesses to afford plaintiff an opportunity by examining them to see if he could support his claim that perjured testimony was used, little need be said except that no sufficient allegations were made and no showing was offered, as to what the particular persons referred to would testify to, to justify or authorize their being brought in as witnesses, and that, in the state of the rec*372ord, plaintiff’s effort was no more than a fishing attempt.

¶13The other matters presented by appellant are equally lacking in merit. They present nothing more than an effort to obtain a retrial of the case before the judge in order to obtain a determination by him whether the verdict against plaintiff should have been found.

¶14No showing of error appearing, the judgment appealed from is

¶15Affirmed.