JAMES FRANCIS HILL, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE

6th Cir. | 1958-06-26
No. 13520
256 F.2d 957 United States Court of Appeals for the Sixth Circuit (1958) Positive Treatment
Cited by 10 cases

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Holding

The court held that the district court erred in denying the motion without a hearing, as the factual allegations must be accepted for the purpose of appeal.


Facts & Procedural History

Appellant moved to set aside his prison sentence, alleging government officials prevented him from taking a direct appeal. Previous motions were unsuc…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal from an order of the district court denying without a hearing a motion filed under 28 U.S. C.A., § 2255 to set aside a prison sentence which Hill is now serving as a result of conviction by a jury of federal criminal offenses. The motion alleged that although serious prejudicial errors were committed at the trial, Hill was physically prevented by government officials from taking a direct appeal from the judgment of conviction.

Previous efforts to vacate the appellant’s sentence have been unsuccessful. See Hill v. United States, 6 Cir., 223 F. 2d 699, certiorari denied 350 U.S. 867, 76 S.Ct. 113, 100 L.Ed. 768; Hill v. United States, 6 Cir., 1956, 238 F. 2d 84. Assiduous court-appointed counsel contends, however, that the present proceeding presents a new factual issue upon which no hearing has ever been held and no finding ever made, and that the district court should therefore have conducted a hearing upon the present motion, despite the denial of the previous motions.

This contention is correct. No responsive pleading was filed by the government denying the factual allegations in the present motion. For the purpose of this appeal these allegations must be accepted. Dunn v. United States, 6 Cir., 1957, 245 F. 2d 407; Zavada v. United States, 1958, 355 U.S. 392, 78 S.Ct. 383, 2 L.Ed.2d 356. The district court was in error in denying the motion without a hearing to determine whether Hill was in fact prevented by government agents from appealing the original judgment of conviction. Cochran v. State of Kansas, 1942, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453; Dowd v. United States ex rel. Cook, 1951, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215.

The order of the district court is set aside and the case remanded for further proceedings.


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