Turner v. United States, 16074.
Decision Date | 28 January 1959 |
Docket Number | No. 16074.,16074. |
Citation | 262 F.2d 643 |
Parties | Curtis TURNER, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Curtis Turner, pro se, submitted briefs.
Edward L. Scheufler, U. S. Atty., and Horace Warren Kimbrell, Asst. U. S. Atty., Kansas City, Mo., submitted brief for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.
This is an appeal, in forma pauperis by a prisoner in the Leavenworth penitentiary, from the denial of a motion filed pursuant to 28 U.S.C. § 2255, alleging that appellant's conviction was secured upon evidence establishing entrapment, which, as a matter of law, entitled him to acquittal and that the sentence should therefore be vacated.
Appellant was charged in six counts of an indictment with violations of the narcotic laws. The first three counts related to a sale of heroin in Kansas City, Missouri, on February 6, 1956; the second three counts related to another sale of heroin in that city on April 11, 1956; all in violation of Title 21 U.S.C.A. § 174; Title 26 U.S.C. § 4704; and Title 26 U.S.C. § 4705. The case was tried to a jury, appellant being represented by two attorneys of his own choosing, and on July 3, 1956, appellant was found guilty on all six counts and sentenced to a total term of imprisonment of ten years. No appeal was taken from that judgment and the sentence is now being served.
The motion to vacate the sentence presently involved was filed on June 13, 1958, nearly two years after the conviction. It is the third of such motions filed by appellant and considered by Judge Ridge, who presided at appellant's jury trial. The court treated the first motion, filed September 22, 1956, as a motion under § 2255 and accompanied the denial of it with written opinion, filed September 27, 1956. The gist of that motion was that appellant's conviction had been secured by evidence that established entrapment as a matter of law and should be vacated for that reason. The court's opinion was as follows:
The second motion prayed the court to grant the relief sought in the original motion and closely resembled the first. The court considered it and denied it without opinion.
But the motion presently involved asserted a right to a different ruling on account of the decision of the Supreme Court on May 19, 1958, in the case of Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. The court accompanied denial of the motion of June 13, 1958, with opinion, filed July 21, 1958, as follows:
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