O'Dell Marshall v. United States

This proceeding under 28 U.S.C. § 2255 is an outgrowth of the conviction of O’Dell Marshall on two counts charging him with transporting and selling marihuana in violation of 21 U.S.C. § 176a, and one count charging him with failure to obtain a written order form as required by 26 U.S.C. § 4742 (a). Concurrent sentences were imposed.

This court affirmed the conviction on April 9, 1969, holding that the conviction on counts one and two were valid and that, because of the concurrent sentences, it was not necessary to consider the count three conviction. Marshall v. United States, 409 F.2d 925 (9th Cir. 1969). Thereafter, the United States Supreme Court determined that the presumption provided by 21 U.S.C. § 176a denies due process of law. Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969).

On October 5, 1971, Marshall commenced this section 2255 proceeding, pointing out that the presumption provided by 21 U.S.C. § 176a was utilized in connection with his trial on counts one and two of the indictment returned against him. He also urged several reasons why his conviction on count three should be set aside, one being that his invalid conviction on counts one…