James Boyd Brown v. United States

Brown was charged with offenses relating to narcotics. The cause was retried, after remand by this Court because of remarks by the District Judge during the trial, and, upon conviction there, the trial court sentenced Brown under 21 U.S.C.A. § 174 , as follows:

There has never been any question but that the same heroin was involved in Counts Two and Four and a different lot in Counts Three and Five.

The conviction was before this Court on appeal, and was affirmed. Brown v. United States, 9 Cir., 222 F.2d 293 . Upon familiar principles, the sentence must be deemed likewise to have been affirmed according to the previous precedents of this Court. Henry v. United States, 9 Cir., 215 F.2d 639 ; Logan v. United States, 9 Cir., 253 F.2d 708 ; Parmagini v. United States, 9 Cir., 42 F.2d 721 .

But it is now claimed that there is a jurisdictional defect in the sentences under the two counts here attacked. Such a point can be raised in a proceeding under 28 U.S.C.A. § 2255 , of course. At the threshold, Brown is met with the objection that no relief can be given him until he is presently entitled to release if his claim be established.

Brown does not even contend he is entitled to…