Meredith B. Turner, Springfield, Mo. (court-appointed counsel and guardian ad litem), for petitioner.
F. Russell Millin, U.S. Atty., by John Harry Wiggins, Asst. U.S. Atty., Kansas City, Mo., for respondent.
BECKER, District Judge.
On June 11, 1963, Euel Jackson Cunningham, the petitioner herein, filed a petition for writ of habeas corpus in forma pauperis. An order to show cause was issued and a response filed.
On June 26, 1963, Meredith B. Turner, Esquire, a member of the bar of this Court, was appointed petitioner's counsel and guardian ad litem.
The cause was set for evidentiary hearing on November 7, 1963, at Springfield, Missouri. On that date, following the practice suggested by Judge James M. Carter in 32 F.R.D. 393, a Pre-hearing Stipulation and Order was filed. The factual issues in this cause were set forth in that order as follows:
After the evidentiary hearing it was concluded by counsel for the respective parties and the Court that petitioner's proper remedy on issues No. 1, 2 and 3 was a motion under Section 2255 of Title 18 U.S.C.A. in the committing court. As stated in Section 2255:
That section further provides:
And as stated in United States v. Hayman, 342 U.S. 205, l.c. 223, 72 S.Ct. 263, l.c. 274, 96 L.Ed. 232, l.c. 244 at n. 40:
On the record in this case it would have been virtually impossible to show that petitioner's remedy by motion under Section 2255 was inadequate and ineffective, in light of the recent opinion of the United States Supreme Court in the case of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 holding that
conventional notions of finality, res judicata and ordinary discretionary refusal to grant a hearing are not applicable in 2255 cases; and that the remedy provided by Section 2255 is as broad as that provided by habeas corpus. Therefore petitioner's Section 2255 remedy was adequate and available, and had not been exhausted or frustrated.
After the evidentiary hearing in this cause, petitioner's court-appointed counsel and guardian ad litem filed a 2255 motion in petitioner's committing court, the United States District Court for the Southern District of Georgia, raising issues No. 1, 2 and 3, supra. A counsel and guardian ad litem was appointed for petitioner in that District. Thereafter on April 15, 1964, the United States District Court for the Southern District of Georgia vacated and set aside the order of conviction and imposition of sentence. Therefore on issues No. 1, 2 and 3, this petition for writ of habeas corpus has become moot.
Turning to stipulated issues No. 4 through 7 inclusive, the Court finds on the basis of the files and records herein, the facts adduced at the evidentiary hearing held in this cause on November 7, 1963, and the Court's observance of petitioner at that time, that:
Since all questions of fact raised by stipulated issues No. 4 through 7 inclusive have been decided adversely to petitioner's contentions, the petition for writ of habeas corpus on file herein insofar as it is based on issues No. 4 through 7 inclusive should be denied with prejudice.
It is therefore
Ordered that the petition for writ of habeas corpus on file herein be, and the same is hereby, denied as moot on stipulated issues No. 1, 2 and 3, but with prejudice to stipulated issues No. 4 through 7 inclusive. It is further
Ordered that Meredith B. Turner, Esquire, petitioner's court-appointed counsel and guardian ad litem be, and he is hereby, relieved of all further duties under his appointment.