James Otis Frierson v. United States

223 F.2d 255, 1955 U.S. App. LEXIS 3940

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 9, 1955
• Docket: 12289_1
• Status: Published

Opinion

PER CURIAM.

This is an appeal from an order overruling a motion to vacate sentence entered by Chief Judge Lederle in the Eastern District of Michigan.

After changing his plea of guilty to that of not guilty, the defendant was tried and found guilty by verdict of a jury, and was sentenced by Judge Holtzoff to ten years’ imprisonment and to a fine of $250 on a one-count information charging the possession of marijuana cigarettes in violation of section 2593, Title 26, U.S.C.A. Appellant was convicted as a third offender on state court evidence, which he avers was obtained illegally.

Upon the authority of our decision in Davilman v. United States, 6 Cir., 180 F.2d 284, wherein we held that a convict could not avail himself of section 2255, Title 28, U.S.C.A., to retry his case; and upon authority of the opinion of Mr. Justice Jackson in Irvine v. People of State of California, 347 U.S. 128, 134, 74 S.Ct. 381, 98 L.Ed. 561, wherein it was held that illegally seized evidence is admissible in federal court, unless a federal officer perpetrated the wrong;

The judgment of the district court is affirmed.