Emilio Elisandro Ybarra v. United States

Appellant appeals from the order of the District Court denying him a Writ of Error Coram Nobis and dismissing his action. This Court has jurisdiction under 28 U.S.C. §§ 1291 and 1294(1).

Appellant moved in the District Court to vacate the sentence imposed on him on December 7, 1944, after his plea of guilty to an indictment charging violation of 21 U.S.C. § 174 on that date in the District Court. His sentence of three years having long since been served, relief under 28 U.S.C. § 2255 as requested by him in his petition does not lie. He is entitled to relief only if he is entitled to a Writ of Error Coram Nobis under 28 U.S.C. § 1651 (a). The asserted prejudice he claimed below he suffered as a result of the sentence of December 7, 1944, was that subsequently he was sentenced as a recidivist in the California state court and was at that time serving such sentence. However, at oral argument before this Court his counsel stated that the recidivist sentence had been vacated and appellant has now been sentenced by the California court solely under the penalty provisions of the statute, the violation of which he had been convicted in the state court, so that he now suffers no prejudice…