DocketNumber: No. 314
Citation Numbers: 136 F.2d 680, 1943 U.S. App. LEXIS 3114
Judges: Chase, Hand
Filed Date: 6/11/1943
Status: Precedential
Modified Date: 10/18/2024
This is an appeal from an order refusing to allow the issuance of a writ of habeas corpus to review the conviction of the relator for the use of the mails to defraud. • It is a sequel of earlier proceedings in this court which must be stated in some detail to make understandable the present appeal. On March 12, 1942, the relator filed a petition in this court, seeking habeas corpus on the ground that he had signed a stipulation consenting to be tried before a judge without a jury, without the assistance of counsel and without being advised of his constitutional rights. The respondents‘filed a return on March 16th, and the relator a traverse on March 18 in the form of an affidavit elaborating the circumstances in
“The motion will be denied, but if the relator wishes to apply for certiorari from the denial, Mr. Walsh, his former attorney, is appointed to prosecute his petition.”
He did not apply for certiorari but instead filed a petition in the district court for allowance of a new writ of habeas corpus, annexing as exhibits the papers we have recited, not only repeating the allegations which he had once withdrawn, but adding other grounds for supposing that his conviction was unlawful. The judge refused to allow the writ and the appeal is from that order.
We have nothing to add to our memorandum of March 3, 1943, so far as concerns the question of the jury trial. As to the new points, it is enough to say that they must be raised by bill of exceptions. If is true that the scope of review by habeas corpus is not altogether clear, and has of late been somewhat enlarged; yet it still remains true that it is not a substitute for appeal, and this is no instance in which to make it serve as such.
Order affirmed.
No opinion for publication.