Harris

The petition presently before the Court is defendant Luis C. Bandurraga’s application for a writ of error coram nobis to vacate and set aside a Judgment of this Court.

Petitioner was convicted by a jury, on April 6, 1956, of violations of 18 U.S.C.A. §§ 371 , 1341. Following the Judgment of Guilty, petitioner perfected an appeal to the Circuit Court and subsequently, during the pendency of the appellate proceedings, filed this application for the common law writ. On November 9, 1956, this Court, noting that due regard for orderly judicial administration required it to abstain from determining petitioner’s plea while the judgment thus sought to be vacated was under review on appeal, refused to entertain the petition until Bandurraga had secured a remand from the Court of Appeals. Subsequently that Court made its Order permitting the determination of the petition although the appellate proceedings are still pending.

The Government contends that if Bandurraga is not limited to his appellate review, he can challenge the Judgment only by proceedings pursuant to Section 2255, Title 28 U.S.C.A. That Section, however, can be invoked only by defendants “in custody” under the sentence…