Michele Marchese v. United States of America, and Preston Smith, Warden of U.S. Correctionalinstitution at Terminal Island, California

This is an appeal from an order of the United States District Court, Southern District of California, denying appellant’s petition for a writ of habeas corpus. The appeal is made pursuant to 28 U.S.C.A. § 2253 .

Appellant was convicted of narcotics violations and sentenced to imprisonment, and is confined within the jurisdiction of the same court. Hence that court is the proper forum for either a motion under 28 U.S.C.A. § 2255 , or for a petition for writ of habeas corpus.

After appealing his conviction to this Court, and being denied certiorari by the Supreme Court of the United States, appellant filed in the court which imposed the sentence, a motion under § 2255 to annul, vacate and set aside the judgment of conviction. That motion was finally denied March 15,1961, and no appeal was taken from that order.

On June 20, 1961, the instant habeas corpus action was filed and was dismissed by the District Court for lack of jurisdiction. The portions of § 2255 pertinent to this appeal are:

In the enactment of § 2255, “ * * * the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.”…