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2d 214
The appellant contends that the trial judge lacked authority to order his
commitment under the Act without his consent. The contention is completely
lacking in merit. The judge was vested with authority to sentence the appellant
to a term of imprisonment under 1701 of Title 18 U.S.C.A., or, in lieu thereof,
to order his commitment for the purpose of treatment. 18 U.S.C.A. 5010(b)
and (d). We have considered the cases cited by the appellant and find them
inapposite.
The appellant maintains that the failure of the lower court to grant him an
evidentiary hearing on the motion was error. The only questions raised were
decidable on "the motion and the files and record of the case" from which it
conclusively appeared that the appellant was entitled to no relief. Under these
circumstances such a hearing was not required. 28 U.S.C.A. 2255.
The appellant here contends for the first time that he was denied the effective
assistance of counsel "during the course of the proceedings against him." We
are convinced from our examination of the record that the contention is lacking
in substance. However, since the question was neither properly raised by the
motion nor considered by the court below, we cannot consider it on this appeal.
Brown v. United States, 321 F.2d 898 (5th Cir. 1963); Smith v. United States,
287 F.2d 270 (9th Cir. 1961), cert. den. 366 U.S. 946, 81 S.Ct. 1676, 6 L.Ed.2d
856; Bartholomew v. United States, 286 F.2d 779 (8th Cir. 1961).
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