Jackson v. United States
Decision Date | 07 April 1970 |
Docket Number | No. 19790.,19790. |
Citation | 423 F.2d 1146 |
Parties | Virgil Lee JACKSON, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Virgil Jackson, pro se.
Daniel Bartlett, Jr., U. S. Atty., and James M. Gordon, Asst. U. S. Atty., St. Louis, Mo., on brief for appellee.
Before BLACKMUN, GIBSON and LAY, Circuit Judges.
Petitioner, Virgil Lee Jackson, is presently confined in the Missouri State Penitentiary serving a ten-year sentence for second degree burglary. See State v. Jackson, 411 S.W.2d 129 (Mo.1967). On April 13, 1967, Jackson was convicted by a federal jury in the Eastern District of Missouri of concealing and retaining stolen United States postal money orders in violation of 18 U.S.C. § 641. He was given a three year sentence by the federal district court to run consecutively to the state sentence he was then serving. His conviction was affirmed sub nom. by this court on appeal. Feinstein v. United States, 390 F.2d 50 (8 Cir. 1968), cert. den. 392 U.S. 943, 88 S. Ct. 2327, 20 L.Ed.2d 1405 (1968). On January 27, 1969, Jackson filed a petition in the federal district court for a writ of habeas corpus under 28 U.S.C. § 2241 claiming his federal conviction and sentence was illegal, alleging inter alia an illegal arrest without probable cause and the use of illegally seized evidence. The district court, the Honorable John K. Regan, on March 12, 1969, entered an order dismissing the petition without prejudice. The district court treated Jackson's petition as a § 2255 motion1 and held that the petition was premature since the petitioner was not yet in "custody" under the sentence he attacked. Jackson was denied leave to appeal in forma pauperis. Leave was granted by this court and the present appeal ensued. The sole issue is whether the federal district court was correct in dismissing Jackson's petition as premature since he was not in federal "custody" at the time he filed his motion. We conclude that under existing law the district court did have jurisdiction and we reverse and remand for further proceedings.
In Ramsey v. United States, 351 F.2d 31 (8 Cir. 1965), we held that a § 2255 post-conviction motion could not be filed where the petitioner was then serving a state sentence, because he had not yet begun to serve his federal sentence. Our decision turned upon the statement in Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 454, 3 L.Ed.2d 407 (1959), that "* * * § 2255 is available only to attack a sentence under which a prisoner is in custody."
Much water has passed under the bridge since Heflin was decided. First, it should be recognized that in Heflin, the Supreme Court was divided 5 to 4 on the question as to whether a prisoner could attack a sentence he was not presently serving. Four of the justices, including three members of the present Court,2 felt that "A motion for such relief may be made at any time * * *." 358 U.S. at 418, 79 S.Ct. at 453. Mr. Justice Stewart wrote the majority view, in which Mr. Justice Harlan concurred along with Justices Frankfurter, Clark and Whittaker. The majority view was premised upon these two basic principles: (1) that the scope as to the rights under habeas corpus and § 2255 are the same, citing United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952) and (2) that "custody" of a petitioner was required for a court to entertain a petition for a writ of habeas corpus under the mandate of McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934).
The Supreme Court has recently emphasized that the scope of habeas corpus and § 2255 are intended to be the same.3 However, in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), involving the issue of "custody" under § 2241, McNally v. Hill, supra, was overruled. A unanimous Supreme Court spoke this significant language:
See also Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Walker v. Wainwright, 390 U. S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).
Since Peyton v. Rowe, supra, courts of appeals have consistently interpreted the "custody" language of § 2255 within the same context of the new scope and meaning given to the writ of habeas corpus by that decision. See Crow v. United States, 397 F.2d 284 (10 Cir. 1968); Rosa v. United States, 397 F.2d 401 (5 Cir. 1968); Desmond v. United States Board of Parole, 397 F.2d 386 (1 Cir. 1968), cert. den. 393 U.S. 919, 89 S.Ct. 249, 21 L.Ed.2d 206 (1968). See also Orfield, Motion to Vacate Under 28 U. S.C. § 2255 (Part I), 2 Creighton L.Rev. 5, 19 n. 99 (1968). The First Circuit in Desmond said:
...
To continue reading
Request your trial-
Davis v. Rockwell Intern. Corp.
... ... Civ. A. No. C82-1417 ... United States District Court, N.D. Ohio, E.D ... October 18, 1984. 596 F. Supp. 781 ... ...
-
Collins v. United States, 76 C 545
...a district court does have jurisdiction to hear a petition under circumstances similar to the case sub judice. In Jackson v. United States, 423 F.2d 1146, 1149 (8th Cir. 1970), a defendant had been sentenced to three years imprisonment to run consecutively to the State sentence he was alrea......
-
Simmons v. United States, 29558.
...as sentences to be joined to create a concept of continuing custody for the duration of a prisoner's incarceration.2 Jackson v. United States, 8th Cir. 1970, 423 F.2d 1146; Desmond v. United States Board of Parole, 1st Cir. 1968, 397 F.2d 386. See also United States ex rel. Meadows v. New Y......
-
Kettle v. U.S. & Attorney Gen. of S.D.
...federal court has sentenced the prisoner and the prisoner remains subject to future custody under that sentence. See Jackson v. United States, 423 F.2d 1146 (8th Cir. 1970). And Rule 1(b) of the Rules Governing Section 2255 Proceedings allows a prisoner held in state custody to bring a moti......