United States v. Casto , 135 F. Supp. 833 ( 1955 )

WATKINS, Chief Judge.

On December 29, 1953, the defendant was sentenced by this court for income tax evasion ánd is now serving that sentence at Atlanta, Ga. He has made a motion to vacate the sentence under 28 U.S.C.A. § 2255.

The record shows that at the trial of this case before a jury the defendant was represented by able and experienced counsel, Charles W. Moxley and William Drennen, of Charleston, W. Va., who were employed by defendant. Defendant testified in his own behalf. The jury found him guilty.

The motion which he now makes is based upon alleged errors in the instructions of the court, the admission of evidence, and is largely devoted to argument that the jury should have found him not guilty, or that the evidence was not sufficient to convict, or other matters which could have been raised on appeal.

There is no allegation that the defendant was denied any constitutional right, or that the court was without jurisdiction to impose such sentence, or that the sentence. imposed was in excess of the maximum authorized by law, or any matter making the sentence otherwise subject to collateral attack, as provided for in section 2255. Most of the allegations are mere inferential arguments proper only for jury consideration. The defendant is in effect seeking to retry the case on the facts and to raise questions of law which could have been raised by appeal. It is well settled that this motion may not be used as a substitute for appeal. Dennis v. United States, 4 Cir., 177 F.2d 195; Birch v. United States, 4 Cir., 173 F.2d 316; United States v. Kranz, D.C.D.N.J., 86 F.Supp. 776; United States v. Krepper, D.C.D.N.J., 86 F.Supp. 862.

The motion to vacate 'sentence is denied.