GEORGE ARMSTEAD, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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A defendant cannot collaterally attack a conviction based on issues that could have been raised on direct appeal, such as unlawful search or sufficiency of evidence.
Appellant was convicted of smuggling marihuana and did not appeal. He later filed a motion to vacate the conviction, alleging unlawful search and insu…
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PER CURIAM.
Appellant was tried to a jury and convicted of smuggling marihuana into the United States in violation of Title 21 U.S.C.A. § 176a. He was sentenced to a term of seven years imprisonment. He was represented by counsel of his own choice and did not appeal from the Judgment of conviction.
His motion under the authority of 'Title 28 U.S.C.A. § 2255 to vacate the conviction and sentence was denied by the District Court without a hearing. The asserted basis for the motion was conviction upon evidence seized as the result of an unlawful search, and because the government failed to prove every essential element charged in the indictment. In addition, appellant complains here of the denial of his motion by the District Court without a hearing.
Appellant made no effort to suppress the evidence allegedly seized as a result of an unlawful search either prior to or during his trial, and may not. now collaterally attack the judgment of conviction on this ground. United States v. Zavada, 6 Cir., 1961, 291 F. 2d 189;. White v. United States, 1956, 98 U.S.App.D.C. 274, 235 F. 2d 221 and Barber v. United States, 10 Cir., 1952, 197 F. 2d 815, cert. den., 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665. Nor may he now collaterally attack the judgment by questioning the sufficiency of the evidence' with respect to whether or not the government proved the essential elements-charged in the indictment. McCreary v. United States, 5 Cir., 1957, 249 F. 2d 433;. and Arthur v. United States, 5 Cir., 1956,. 230 F. 2d 666.
It follows from this that appellant was not entitled to a hearing on his-motion since it raised only questions of law. Lopez v. United States, 5 Cir., 1953, 205 F. 2d 452; and Mohler v. United. States, 5 Cir., 1951, 189 F. 2d 854.
The judgment appealed from is
Affirmed.
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Cited By
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von Eberstein v. State, 270 So. 2d 444 (Fla. 1st DCA 1972)
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Stone v. Powell, 428 U.S. 465 (U.S. 1976)
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Kaufman v. United States, 394 U.S. 217 (U.S. 1969)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Barber v. United States, 197 F.2d 815 (10th Cir. 1952)
- Arthur v. United States, 230 F.2d 666 (5th Cir. 1956)
- Mason W. White v. United States, 235 F.2d 221 (D.C. Cir. 1956)
- McCREARY v. United States, 249 F.2d 433 (5th Cir. 1957)
- Paris v. Texas, 344 U.S. 857 (U.S. 1952)
- Wild v. Atl. Ref. Co., 344 U.S. 857 (U.S. 1952)
- United States v. Zavada, 291 F.2d 189 (6th Cir. 1961)
- Mohler v. United States, 189 F.2d 854 (5th Cir. 1951)
- Lopez v. United States, 205 F.2d 452 (5th Cir. 1953)