Kobey

Defendants have again presented their motion “for order vacating * * * judgments of conviction” etc. pursuant to 28 U.S.C. § 2255 . In response to this motion the Government has moved “for an order directing that no hearing is necessary,” contending the record affirmatively discloses that defendants are not entitled to any relief provided by § 2255.

These motions were heretofore made while defendants were in custody of the State of California serving state-court sentences.

At that time, in view of the plain language of 28 U.S.C. § 2255 limiting the privilege of motions under the statute to prisoners “in custody under sentence of a court established by Act of Congress”, I held that this court did not have jurisdiction over either the subject matter of the motions or the persons of the defendants. Accordingly, the motions were denied, without prejudice to the right to renew the same or similar motions following the discharge of defendants from state custody. See United States v. Kobey, D.C.S.D.Cal., 1952, 109 F.Supp. 192 .

Defendants have since been discharged from state custody and are now in federal custody serving concurrently the sentences imposed by the judgments here sought…