CARL EUGENE MUCHERINO, APPELLANT,
v.
OLIN G. BLACKWELL, WARDEN, UNITED STATES PENITENTIARY, LEWISBURG, PENNSYLVANIA
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The court held that a petition for habeas corpus is not the proper remedy for claims that were or could have been raised at trial or on direct appeal.
Appellant was convicted of counterfeiting offenses and his conviction was affirmed on direct appeal. He later filed a petition for a writ of habeas co…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant was tried and convicted under Title 18 U.S.C. §§ 472, 473 for conspiracy and substantive counterfeiting offenses in the United States District Court for the District of Maryland. He was sentenced to serve a term of five years on each of the two counts to run concurrently and to pay a fine of $2500 without costs and without further confinement in default of payment of the fine. The conviction was affirmed, United States v. Mucherino, 311 F. 2d 172 (4 Cir.1962). One of the other two defendants who stood trial with appellant and was convicted also appealed. That conviction was affirmed in United States v. Wenzel, 311 F. 2d 164 (4 Cir.1962). There is no claim that application for certiorari was made in either case. Appellant is confined to the United States Penitentiary at Lewisburg, Pennsylvania where he is serving his said sentence.
This appeal is from the denial of a petition for habeas corpus filed by appellant in the District Court for the Middle District of Pennsylvania. The appeal has been competently and thoroughly argued on behalf of the appellant by new counsel in the case. The major difficulty with it is that appellant’s petition relies entirely on trial matters, all of which were before the trial court and the court of appeals. The reason for not going before the trial court under a 2255 petition, setting up the grounds here stated, is, as noted in appellant’s brief, “The trial court’s previous denial of the grounds raised in the instant petition, at the trial and subsequent motions for a new trial, would make the application to the trial court inadequate and ineffective to test the legality of petitioner’s detention *
The facts fully support the holding of Judge Follmer in the district court “ * * * that as to any contentions now open to him [appellant], his remedy by motion to the sentencing court to vacate the sentence would be available and entirely adequate, Frazier v. Blackwell, 325 F. 2d 154 (3 Cir. 1963), and exclusive, if already made by him, Sims v. Willingham, 300 F. 2d 162 (3 Cir.1962).”
The order of the district court will be affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Application of Carmine Galante, 437 F.2d 1164 (3d Cir. 1971)
Authorities Cited
- United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962)
- United States v. Mucherino, 311 F.2d 172 (4th Cir. 1962)
- Sims v. Willingham, 300 F.2d 162 (3d Cir. 1962)
- Amadore Porcella v. Time, Inc., 300 F.2d 162 (7th Cir. 1962)
- M. Hallsted Christ in Bankr. of Gibraltor Amusements, Ltd. v. Admiral Trading Corp., 325 F.2d 154 (2d Cir. 1963)
- Frazier v. Olin G. Blackwell, 325 F.2d 154 (3d Cir. 1963)