(concurring specially).
I concur in the judgment of the court and its reasoning to the effect that the sentencing court, having entertained and decided a motion for identical relief under Section 2255, the trial court rightly declined to entertain the petition for the writ of habeas corpus. My concurrence is based squarely on the premise that the petitioner has no right to review by habeas corpus what has been competently considered and decided by the sentencing court in a motion to vacate under. Section 2255.
According to his own petition, the petitioner moved the sentencing court to vacate on the grounds that the information to which he pleaded guilty did not state an offense against any law of the United States, and the court did not therefore have jurisdiction to impose the sentence he is now serving. Section 2255 specifically authorizes a prisoner in custody un*91der sentence of a federal court claiming the right to be released on the grounds that the court was without jurisdiction to impose such sentence, to move the sentencing court to vacate, set aside, or correct the sentence — at any time.
As Chief Judge PHILLIPS so well stated, the Act was designed to supplant habeas corpus by affording the same relief in the sentencing court, and see Barrett v. Hunter, 10 Cir., 180 F.2d 510. Section 2255 expressly provides that “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”
The sentencing court entertained the motion under Section 2255 and denied the relief. The petitioner does not contend that the court was without jurisdiction to entertain the motion. Indeed, he could not successfully do so, for if the information failed to state an offense against the laws of the United States, the sentencing court was without jurisdiction to impose the sentence under which he is detained, and would therefore be authorized under Section 2255 to set aside or correct the same. Petitioner’s only ground for his contention that the remedy was inadequate or ineffective is that the court arbitrarily refused to grant him a hearing on the allegations of his motion, and refused to allow him to appeal in forma pauperis.
We have squarely held that such allegations are insufficient to show an inadequate or ineffective remedy under Section 2255. See Barrett v. Hunter, supra, 180 F.2d at page 516. Indeed, a hearing on the motion under Section 2255 or on application for the writ is not essential to due process if the files and records in the case conclusively show, as a matter of law, that the petitioner is entitled to no relief. The information to which the petitioner pleaded guilty was undoubtedly before the trial court when it entertained the motion to vacate, and its legal sufficiency to state an offense was necessarily considered and decided. From that decision, the petitioner had the right of review. The motion to vacate was therefore neither inadequate nor ineffective to test the cause of his detention, and the trial court for that reason rightly declined to entertain the petition for the writ.
I cannot concur in the interesting commentary on the office of a writ of habeas corpus before the advent of Section 2255. In the first place, it has no present bearing on the adequacy or effectiveness of the motion. In the second place, it leaves the impression that the petition for the writ should have been denied, because even in the absence of Section 2255, the jurisdictional point could not have been reached on habeas corpus. As to that, I cannot agree.