Aubrey G. Hassell v. United States

Hassell appeals from order of the District Court, entered without hearing, denying his motion for relief under 28 U.S.C. § 2255 . Upon appeal he contends that the court erred in refusing him a hearing since it cannot be said in this case that the files and records conclusively show that he was entitled to no relief.

The action of the District Court was based upon the fact that this was the second motion under § 2255 by which Hassell has attacked the sentence he is now serving. On his first motion he had contended that the information stated no federal offense. The present motion is upon an entirely different ground. It should not then be denied hearing solely upon the ground that it is “a second or successive motion for similar relief” under § 2255. Barrett v. Hunter, 10 Cir., 1950, 180 F.2d 510, 514 , 20 A.L.R.2d 965 , certiorari denied 340 U.S. 897 , 71 S.Ct. 234 , 95 L.Ed. 650 ; Green v. United States, D.C.Mass.1958, 158 F.Supp. 804, 808 , affirmed, 1 Cir., 1958, 256 F.2d 483 , certiorari denied 358 U.S. 854 , 79 S.Ct. 83 , 3 L.Ed.2d 87 .

The United States does not rely upon this ground, but contends that the files and records upon this motion conclusively show that Hassell…