James Harland Birdwell v. United States

James Harland Birdwell appeals from the denial, in part, of his motion made pursuant to 28 U.S.C. § 2255 (1958) to vacate the sentence imposed upon him.

On September 10, 1962, while represented by counsel, Birdwell pleaded guilty to an information charging a violation of the Dyer Act, 18 U.S.C. § 2312 (1958). On September 18, 1962, he was committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4208 (b) (1958), for imprisonment for the maximum period authorized by law (five years), and for a study and report as described in section 4208(b) and (c).

On January 2, 1963, without calling Birdwell and his counsel before the court, an order was entered reciting that the court had received and considered the report of the study which had been ordered, and ordering and adjudging that the sentence of imprisonment theretofore imposed be affirmed as therein modified. The modification was the inclusion of a provision that Birdwell would become eligible for parole “ * * * at such time as the board of parole may determine, 18 U.S.C. 4208(a) (2).”

Birdwell filed the section 2255 motion now before us on November 26,1963. He urged two grounds for relief: (1) it was error to…