From Casetext: Smarter Legal Research

Barber v. United States

United States Court of Appeals, Tenth Circuit
Jun 11, 1952
197 F.2d 815 (10th Cir. 1952)


No. 4475.

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.


Summaries of

Barber v. United States

United States Court of Appeals, Tenth Circuit
Jun 11, 1952
197 F.2d 815 (10th Cir. 1952)
Case details for

Barber v. United States

Case Details


Court:United States Court of Appeals, Tenth Circuit

Date published: Jun 11, 1952


197 F.2d 815 (10th Cir. 1952)

Citing Cases

White v. United States

That a failure to use a known remedy at the time of trial may be a bar to subsequent reliance on the…

West v. United States

Likewise, it is well settled that a motion for vacation of a judgment and sentence under 28 U.S.C. § 2255…