BARBER
v.
UNITED STATES
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Evidence illegally seized from a defendant's home cannot be raised for the first time in a motion to vacate conviction under 28 U.S.C.A. § 2255.
Appellant sought to vacate his conviction, arguing that evidence (shoes) illegally seized from his home was used against him at trial. The shoes were …
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PER CURIAM.
Appellant, Isaac Jack Barber, filed a motion in the sentencing court under 28 U.S.C.A. § 2255 to vacate and set aside his judgment of conviction in that court. He has appealed from an adverse ruling.
In his motion filed in the sentencing court, appellant states the question as follows:
“There is only one question of law to be decided in this motion and it is can the government use evidence illegally seized from the defendant’s home be used against him.”
The agent for the Federal Bureau of Investigation entered appellant’s home and seized a pair of shoes without a search warrant. These shoes were introduced in evidence at his trial over objection by his attorney. Conceding, without deciding, that the shoes were erroneously received in evidence, their reception at most constituted a trial error occurring during the course of the trial. That error, if such it was, was one that could be challenged only by taking an appeal from the judgment of conviction and may not be raised for the first time by a proceeding under § 2255.1
Affirmed.
. See Price v. Johnston, Warden, 9 Cir., 125 F. 2d 806; Bozel v. Hudspeth, Warden, 10 Cir., 126 F. 2d 585; Howell v. United States, 4 Cir., 172 F. 2d 213; Dennis v. United States, 4 Cir., 177 F. 2d 195; Losieau v. United States, 8 Cir., 177 F. 2d 919.
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Citator
Cited By (18 total)
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Houser v. United States, 508 F.2d 509 (8th Cir. 1974)
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Gaitan v. United States, 317 F.2d 494 (10th Cir. 1963)
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Major A. Eberhart, Jr. v. United States, 262 F.2d 421 (9th Cir. 1958)
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Price v. Johnston, 125 F.2d 806 (9th Cir. 1942)
- United States ex rel. Carmelo v. Burke, 172 F.2d 213 (3d Cir. 1949)
- Howell v. United States, 172 F.2d 213 (4th Cir. 1949)
- Dennis v. United States, 177 F.2d 195 (4th Cir. 1949)
- Bozel v. Hudspeth, 126 F.2d 585 (10th Cir. 1942)
- Losieau v. United States, 177 F.2d 919 (8th Cir. 1949)