Warren v. United States
Decision Date | 11 January 1963 |
Docket Number | No. 17152.,17152. |
Citation | 311 F.2d 673 |
Parties | Alphonse WARREN, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Alphonse Warren in pro. per.
F. Russell Millin, U. S. Atty., Kansas City, Mo., and Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.
This is an appeal from the denial of a motion to vacate sentence under § 2255, Title 28 U.S.C.A., in which the appellant claims an unlawful arrest and the use at the trial of evidence obtained through the resulting illegal search and seizure. The District Court's denial was predicated upon the grounds that the questions raised were determinable only upon appeal from the judgment of conviction and could not be raised under § 2255. Appellant appears here pro se.
On January 9, 1958, a five-count indictment was returned against the appellant charging him with narcotic violations under §§ 4704(a) and 4705(a), Title 26 U.S. C.A., and § 174, Title 21 U.S.C.A. At the time the appellant, represented by able counsel appointed by the District Court, filed a motion to suppress the arrest warrant and for the suppression of evidence seized at the time of the arrest. After a full hearing, the motion was overruled. In the subsequent trial, Warren was found guilty by the jury on all five counts and was thereafter, as a second offender, sentenced to twenty years' confinement. Following the conviction, appellant filed an affidavit in forma pauperis and sought leave to appeal the District Court's order overruling his motion for a new trial. Leave to file notice of appeal without prepayment of costs was permitted but the District Court denied leave to appeal in forma pauperis, certifying that the appeal was without merit and not taken in good faith. Warren then petitioned this court for leave to proceed in forma pauperis, notwithstanding the certificate of the trial court and the provisions of 28 U.S.C.A. § 1915(a). In Warren v. United States, 8 Cir., 1959, 263 F.2d 263, we appointed the same counsel to represent the appellant who had represented him at the trial in District Court and requested counsel to procure, if possible, an agreed statement of the case and to submit a typewritten report, pointing out in what respects, if any, the trial court erred in certifying that the appeal was not taken in good faith. An agreed statement and report were thereafter filed. In Warren v. United States, 8 Cir., 1959, 268 F.2d 691, we reviewed the contentions of the appellant and his counsel in detail and concluded, at page 692:
Warren's next step was to file an application for a Writ of Error Coram Nobis in the District Court. The application was denied. Appellant then again reached this court through an application for a "Writ of Error Coram Nobis on Appeal in Forma Pauperis". In Warren v. United States, 8 Cir., 1960, 277 F.2d 448, we said:
This court at that time allowed a docketing of the appeal without cost in order to effectuate a termination of the proceedings by dismissing them as being frivolous.
Once again Warren is in this court, this time on a denial of a motion under § 2255 but with the same allegations as twice before presented. The contentions herein are such that we would have dismissed them as being frivolous had they been brought by a non-indigent or paying appellant. Cf. Franano v. United States, 8 Cir., 1962, 303 F.2d 470, 472. The finding of frivolity in the petitions to proceed in forma pauperis must preclude the appellant from once again raising the identical contentions. See Coppedge v. United States, 1962, 369 U. S. 438, 448-450, 82 S.Ct. 917, 8 L.Ed.2d 21.
But aside from the fact that appellant's contentions have heretofore been fully considered, it is also well established that the complaints of illegal arrest and illegal search and seizure are not proper matters to be presented by a motion to vacate sentence under § 2255 but can only be properly presented by appeal from the conviction. See generally Judge Holtzoff's exhaustive review of the scope of § 2255 in United States v. Edwards, D.C.D.C.1957, 152 F.Supp. 179, affirmed in Edwards v. United States, 1957, 103 U.S.App.D.C. 152, 256 F.2d 707, certiorari denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82. An identical situation as to facts and contentions arose in United States v. Scales, 7 Cir., 1957, 249 F.2d 368, certiorari denied, 356 U.S. 945, 78 S.Ct. 792, 2 L.Ed.2d 820. There the court expressly stated, at page 370 of 249 F.2d:
See also Pearson v. United States, 7 Cir., 1962, 305 F.2d 34; Eberhart v. United States, 9 Cir., 1958, 262 F.2d 421; ...
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