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278 F.2d 459

Docket No. 15405.

Moore v. United States

District of Columbia Circuit Court of Appeals

Argued Feb. 23, 1960.

Decided May 5, 1960.

District of Columbia Circuit Court of Appeals · decided 1960-05-05

Cited by 25 later decisions — most recently March 1970 · most notably United States v. Orlando (1964), Juelich v. United States (1962)

14 federal appellate · 4 district ·

2 counsel of record

Key passage — most relied on by later courts

““A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court, which imposed the sentence, to vacate, set aside or correct the sentence. “A motion for such relief may be made . at any time. “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment toas rendered without jurisdiction, or that the sentence imposed toas not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. “A court may entertain and determine sucb motion without requiring the production of the prisoner at the bearing. “The sen”

quoted by 1 later decision, including Juelich v. United States

Applies 28 U.S.C. § 2255 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Price v. Johnston · Salinger v. Loisel · Wong Doo v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 1960-05-05

View the full empirical analysis of this case →

¶1Mr. Wilbert Mclnerney, Washington, D. C. (appointed by this court), for appellant.

¶2Mr. Frank Q. Nebeker, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

¶3Before Mr. Justice Burton, retired,* and Wilbur K. Miller and Danaher, Circuit Judges.

¶5WILBUR K. MILLER, Circuit Judge.

¶6This is a case under 28 U.S.C. § 2255. The appellant, Warren E. Moore, and one James A. Marshall were tried before a jury for, and were found guilty of, housebreaking and petit larceny. The com*460plaining witness and a police officer testified that, in their presence, Moore and Marshall accused each other of the actual entry and theft, and subsequent sale of the radio-phonograph which was stolen. Each said, however, he received a part of the proceeds of the sale.

¶7On November 4, 1955, Moore was sentenced to from three to nine years for housebreaking, and to a concurrent sentence of one year for petit larceny, and did not file a timely notice of appeal. On May 24, 1956, he filed an application for leave to appeal in forma pauperis, which was denied four days later. Moore then filed a motion for reconsideration in which, for the first time, he asserted that a police witness had given perjured testimony against him. The motion was denied August 8, 1956.

¶8On January SO, 1957, the appellant filed a motion for relief under 28 U.S.C. § 2255, alleging his admissions were extracted from him in violation of his constitutional rights and that Rule 5, Federal Rules of Criminal Procedure, 18 U.S.C., was also violated. The motion was denied February 1, 1957, and no appeal was taken.

¶9A second motion under § 2255 was filed July 12, 1958, in which Moore alleged the Government knowingly used perjured testimony at his trial. This motion was denied by the District Court September 12, 1958, on two grounds: (a) that it was “a successive Motion for similar relief” s1 and (b) that “the Motion and the files and records of the case conclusively show that petitioner is entitled to no relief.” This appeal in forma pauperis, allowed by this court August 31, 1959, is from the denial of the second motion.

¶10Moore did not rely on the alleged use of perjurious testimony in his first motion under § 2255. That , he knew then as much as he knows now on the subject is apparent from the record; yet in the second motion he set forth no reason why he was “previously unable to assert his rights,” and did not allege he had previously been “unaware of the significance of relevant facts.”2 In those circumstances, the District Court had discretion to deny relief as to those allegations which could have been, but were not, raised in the earlier proceeding. Turner v. United States, 1958, 103 U.S.App.D.C. 313, 258 F.2d 165.

¶11Affirmed.

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