Fooshee v. United States, 14268.
| Decision Date | 30 March 1953 |
| Docket Number | No. 14268.,14268. |
| Citation | 203 F.2d 247 |
| Parties | FOOSHEE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
H. Jackson Daniel, St. Louis, Mo., Leonard B. Levy, New Orleans, La., Salkey & Jones, St. Louis, Mo., for defendant-appellant.
Cavett S. Binion, Asst. U. S. Atty., Frank B. Potter, U. S. Atty., and Charles Lindsey, Sp. Asst. to U. S. Atty., Fort Worth, Tex., for appellee, United States.
Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.
Convicted on his plea of guilty of having violated section 494, Title 18 U.S.C. by causing to be uttered and published as true upon one F. D. Jones and one Earl D. Hicks, pharmacists, prescriptions for narcotic drugs purportedly issued to C. M. Moore, a false and fictitious name, appellant was sentenced to serve two years with hospitalization at the United States Medical Center in Springfield, Missouri.
On October 10, 1951, while still confined there, he filed a motion under Rule 35 of Federal Rules of Criminal Procedure, 18 U.S.C., and under section 2255, Title 28, U.S.C., to vacate said sentence as illegally imposed.
On November 14, 1951, the motion was denied, and there was no appeal from the order.
On June 23, 1952, appellant refiled his motion under Rule 35 and section 2255 to vacate the judgment and set it aside, and the motion was again denied for the reasons stated in Findings of Fact and Conclusions of Law filed by the court.
Here in an earnest effort to support his claim that the facts set out in the information do not constitute an offense under section 494, appellant has filed a brief replete with the citation of authorities and containing a complete and careful exposition of his reasons for believing that the fact alleged that a false and fictitious name was given to the doctor issuing the prescriptions does not make out an offense under the section.
The United States, while insisting that an offense was charged, points out that, for the reasons it states in its brief, Rule 35 is not available to the defendant because a motion to correct sentence "under that rule presupposes a valid conviction and affords a procedure for bringing an improper sentence into conformity with the law"; Cook v. United States, 1 Cir., 171 F.2d 567, 570. Cf. U. S. v. Bradford, 2 Cir., 194 F.2d 197. As to Section 2255 it points out that that section is not available to him because, as appears from his brief, he is not and for some time past has not been in...
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...Sellers v. Bridges, 153 Fla. 586, 15 So.2d 293, 148 A.L.R. 1240, and attached annotation at 148 A.L.R. 1243, et seq. 7 Fooshee v. United States, 5 Cir., 203 F. 2d 247, 248; United States v. Bradford, 2 Cir., 194 F.2d 197, 200; Crow v. United States, 9 Cir., 186 F.2d 704, 705; Lopez v. Unite......
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Castle v. United States
...As he is no longer "in custody," it is urged that he cannot use Section 2255 to attack the sentence or fine. See Fooshee v. United States, 5 Cir. 1953, 203 F.2d 247. However, since he was in custody at the time he filed the present application, federal jurisdiction is not defeated by his re......
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Duggins v. United States, 12908.
...the proceeding. Lopez v. United States, 9 Cir., 186 F.2d 707; United States v. Bradford, 2 Cir., 194 F. 2d 197, 200; Fooshee v. United States, 5 Cir., 203 F.2d 247. It has likewise been held that where a prisoner is in custody under a state sentence, he cannot attack the validity of a feder......
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Heflin v. United States
...F.2d 197; United States v. McGann, 2 Cir., 245 F.2d 670; United States ex rel. Bogish v. Tees, 3 Cir., 211 F.2d 69, 71; Fooshee v. United States, 5 Cir., 203 F.2d 247; Duggins v. United States, 6 Cir., 240 F.2d 479; Juelich v. United States, 6 Cir., 257 F.2d 424; Oughton v. United States, 9......