June 11, 1952.
Isaac Jack Barber, pro se.
Edwin Langley, U.S. Atty., and J.W. Crawford, Asst. U.S. Atty., Muskogee, Okla., for United States.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.
Appellant, Isaac Jack Barber, filed a motion in the sentencing court under 28 U.S.C.A. § 2255 to vacate and set aside his judgment of conviction in that court. He has appealed from an adverse ruling.
In his motion filed in the sentencing court, appellant states the question as follows:
"There is only one question of law to be decided in this motion and it is can the government use evidence illegally seized from the defendant's home be used against him."
The agent for the Federal Bureau of Investigation entered appellant's home and seized a pair of shoes without a search warrant. These shoes were introduced in evidence at his trial over objection by his attorney. Conceding, without deciding, that the shoes were erroneously received in evidence, their reception at most constituted a trial error occurring during the course of the trial. That error, if such it was, was one that could be challenged only by taking an appeal from the judgment of conviction and may not be raised for the first time by a proceeding under § 2255.
See Price v. Johnston, Warden, 9 Cir., 125 F.2d 806; Bozel v. Hudspeth, Warden, 10 Cir., 126 F.2d 585; Howell v. United States, 4 Cir., 172 F.2d 213; Dennis v. United States, 4 Cir., 177 F.2d 195; Losieau v. United States, 8 Cir., 177 F.2d 919.