Opinion
No. 16873.
January 20, 1958.
No appearance for appellant.
Harman Parrott, Asst. U.S. Atty., Russell B. Wine, U.S. Atty., John E. Banks, Asst. U.S. Atty., San Antonio, Tex., for appellee.
Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and HANNAY, District Judge.
This appeal from a judgment denying his motion, filed under Section 2255, Title 28 U.S.C. to set aside a conviction and judgment affirmed in this court in 231 F.2d 650, presents an effort to attack the judgment of the district court on grounds which are not available in a motion of this kind but only by direct attack on an appeal from the judgment. In short, it is an effort in a collateral attack on the judgment to retry the case, and as such it is directly contrary to the decision of this court in Arthur v. United States, 5 Cir., 230 F.2d 666 and other cases to the same effect. Cf. Adams v. United States, 95 U.S.App. D.C. 354, 222 F.2d 45.
Among the matters which appellant sought to retry by his motion, one was whether counsel of his own choice competently defended him. The motion does not allege fraud or any kind of overreaching but merely that his counsel did not try the case as well as it could have been tried. Other matters sought to be presented are: that the evidence was insufficient to support the conviction; that the testimony of some of the witnesses against him was false; and generally that his conviction should be set aside and he ought to have a new trial. His final attack on the judgment as wrongly imposing consecutive sentences on the conspiracy count and a substantive count is wholly without legal basis. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; Valdez v. United States, 5 Cir., 1957, 249 F.2d 539.
No error of any kind appearing, the judgment is
Affirmed.