Amos Black v. United States
Opinion
Opinion
Hamley, J.
Invoking 28 U.S.C.A. § 2255 , Amos Black moved in the district court to vacate sentences imposed after his conviction for violations of a federal narcotics law, 21 U.S.C.A. § 174 . An order was entered denying the motion and Black appeals.
He here urges as grounds for reversal the numerous reasons which were advanced in the district court in support of his motion. Before reaching the merits of the appeal, however, we must consider the government’s contention that the district court did not have jurisdiction.
It is a jurisdictional requisite to a section 2255 proceeding that the movant then be in custody under sentence of a court. The Government asserts that Black was not in custody under sentence of a court when this proceeding was instituted, or at any time since, because he has elected not to commence service of his sentence.
Following a jury trial and conviction, Black was adjudged guilty on September 16, 1957, and sentences were imposed. Black moved in the district court for leave to appeal in forma pauperis. This motion was denied on September 26, 1957. A formal notice of appeal from his conviction was filed on September 27, 1957.