238 F2d 604 Alm v. United States

238 F.2d 604

Warren ALM, Appellant,


UNITED STATES of America, Appellee.

No. 15629.

United States Court of Appeals Eighth Circuit.

December 10, 1956.

Warren Alm, pro se.

Clinton G. Richards, U. S. Atty., and K. J. Morgan, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.

Before SANBORN, WOODROUGH and WHITTAKER, Circuit Judges.


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This is an appeal in forma pauperis from an order of the District Court of June 1, 1956, denying a motion of Warren Alm, under 28 U.S.C.A. § 2255, for the vacation of a sentence imposed upon him April 21, 1955. The sentence was based upon Alm's conviction under his plea of guilty on April 19, 1955, to an indictment returned March 26, 1953. The indictment charged, under Sec. 2312 of Title 18 U.S.C.A.: "That Warren Alm, on or about the twenty-sixth day of October, 1952, transported a stolen motor vehicle, to-wit: a 1939 Mercury, from Grand Forks, in the District of Minnesota, to Watertown, in the District of South Dakota, and he then knew the motor vehicle to have been stolen."


The record shows that Alm was represented by counsel at the time of the entry of his plea and at the time of his sentence, that he was fully advised of his rights, and that neither he nor his counsel raised any objection to the indictment or to any of the proceedings culminating in the judgment and sentence of which Alm now complains.


The motion of Alm for vacation of his sentence was dated April 5, 1956, and was based upon the assertion that the indictment was defective and did not adequately set forth the elements of the offense sought to be charged.


This appeal is without any merit. In the first place, the contention that the indictment was insufficient because the motor number and serial number of the stolen Mercury, alleged to have been transported interstate by Alm, were not shown in the indictment, is absurd. See and compare, Hewitt v. United States, 8 Cir., 110 F.2d 1, 5-6; United States v. Bent, 8 Cir., 175 F.2d 397, certiorari denied 338 U.S. 829, 70 S.Ct. 79, 94 L.Ed. 504, rehearing denied 338 U.S. 896, 70 S.Ct. 238, 94 L.Ed. 551; Thomas v. United States, 8 Cir., 188 F.2d 6, 8. If Alm, at the time of his arraignment, was in any doubt as to the identity of the stolen automobile he was charged with having transported, he should have applied for a bill of particulars. Thomas v. United States, supra, at page 8 of 188 F.2d.


In the second place, if it be assumed that the indictment was vulnerable for insufficiency of statement before Alm entered his plea of guilty and was convicted, it was certainly invulnerable to collateral attack thereafter. As this Court said in Keto v. United States, 8 Cir., 189 F.2d 247, 249:


"The general rule is that, after conviction, a sentence is not open to collateral attack on the ground that the information or indictment upon which it was based was defective. A motion to vacate a judgment, under 28 U.S.C.A. § 2255, is a collateral attack upon the judgment, and only such grounds may be urged as would be available in habeas corpus proceedings. United States v. Gallagher, 3 Cir., 183 F.2d 342, 344. A judgment in a criminal case which is invulnerable to attack by habeas corpus is equally invulnerable on motion to vacate the judgment."


See, also, Collins v. United States, 8 Cir., 211 F.2d 789, 790.

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Alm's attempt to secure a vacation of his sentence was doomed from its inception, and leave to proceed in forma pauperis with this futile appeal should not have been granted beyond allowing him to file a notice of appeal. See Higgins v. Steele, 8 Cir., 195 F.2d 366.


The order appealed from is affirmed.