Vera v. United States
| Decision Date | 16 March 1961 |
| Docket Number | No. 16591.,16591. |
| Citation | 288 F.2d 25 |
| Parties | Jesse Cruz VERA, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jesse Cruz Vera, pro se.
Edward L. Scheufler, U. S. Atty., and Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before WOODROUGH, VAN OOSTERHOUT, and MATTHES, Circuit Judges.
On October 17, 1957, appellant was sentenced on his plea of guilty to Counts II and III of an indictment which charged him in Count II with receiving, concealing and facilitating the transportation on March 18, 1957, of 47 grains of heroin in violation of 21 U.S.C.A. § 174 and in Count III with purchasing on the same date 47 grains of heroin in violation of 26 U.S.C. § 4704(a). The periods of appellant's commitment to the custody of the Attorney General were five years on Count II and two years on Count III to run concurrently. Appellant is now confined at the Medical Center for Federal prisoners at Springfield, Missouri, having been received there from a Texas institution on May 1, 1958. He is a tuberculosis patient. He applied for a writ of habeas corpus to Judge Duncan on July 1, 1960, alleging that he had served more than one third of his term and that he was entitled to parole under 18 U.S.C. § 4202, but that he was wrongfully denied it, and wrongfully denied access to the Parole Board for a hearing thereon in violation of his constitutional rights, and he was subjected to cruel and unusual punishment. Judge Duncan denied the writ and this appeal from his order is taken in forma pauperis.
Judge Duncan relied on 26 U.S.C. § 7237 which excludes suspending sentence, probation or release on parole for first time narcotic offenders in terms as follows:
Section 7237. Violation of laws relating to narcotic drugs and to marihuana.
The above quoted subsection, when referring to "subsection (c), (h) or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended," is describing Title 21 U.S.C.A. § 174, which is the section...
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