Howard Lawrence Ramsey v. United States , 351 F.2d 31 ( 1965 )

351 F.2d 31

Howard Lawrence RAMSEY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 18018.

United States Court of Appeals Eighth Circuit.

Sept. 24, 1965.

Howard Lawrence Ramsey, pro se.

Richard D. FitzGibbon, Jr., U.S. Atty., St. Louis, Mo., and John A. Newton, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before VOGEL, Chief Judge, and MATTHES and GIBSON, Circuit Judges.

PER CURIAM.

1

This is an appeal from an order entered by United States District Court for the Eastern District of Missouri, denying appellant's motion filed under 28 U.S.C.A. 2255 to vacate a sentence previously imposed on him by that court, on the ground that the motion was prematurely instituted.

2

On November 4, 1963, appellant was arraigned in the Circuit Court of the City of St. Louis, Missouri, and charged with the offenses of 'uttering a forged instrument' and 'first degree robbery'

3

Pursuant to a writ of habeas corpus, appellant was then removed, on November 4, 1963, from the St. Louis, Missouri, City Jail to the United States District Court for the Eastern District of Missouri, for trial on an indictment which charged the offense of causing a falsely made, forged and counterfeited check to be transported in interstate commerce from St. Louis, Missouri, to Nashville, Tennessee, in violation of 18 U.S.C.A. 2314. On November 5, a jury found appellant guilty, as charged in the indictment.

4

Appellant was then returned to the custody of the State of Missouri for prosecution and trial on the earlier charge of 'uttering a forged instrument.' He was subsequently found guilty by a jury in the Circuit Court of the City of St. Louis.

5

On December 20, 1963, under a writ of habeas corpus, appellant was again brought before the United States District Court and, pursuant to the verdict of guilty returned against him on November 5, 1963, the court sentenced him to two and one-half years imprisonment.

6

He was then returned to the custody of the State of Missouri and, on February 3, 1964, pursuant to the guilty verdict in the Circuit Court of the City of St. Louis on the charge of 'uttering a forged instrument', appellant was sentenced to eight years imprisonment to the Missouri State Department of Corrections. He was also sentenced to a concurrent term of eight years imprisonment on his plea of guilty to the earlier charge of 'first degree robbery'. Appellant is now in the process of serving these terms at the Missouri State Penitentiary.

7

A 2255 motion is not available to attack a sentence which a prisoner has not commenced to serve. Ellison v. United States, 263 F.2d 395 (10 Cir. 1959); Cain v. United States, 349 F.2d 870 (8 Cir. 1965). In Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959), the Supreme Court stated that: 'Section 2255 is available only to attack a sentence under which a prisoner is in custody.' Id. at 418, 79 S.Ct. at 453.

8

Appellant's 2255 motion is premature. He is presently serving, in the Missouri State Penitentiary, the concurrent eight year sentences imposed by the Circuit Court of the City of St. Louis. He will not begin to serve the two and one-half year sentence imposed by the Federal District Court, which he attacks in this 2255 proceeding, until he has finished service of the State terms.

9

The order appealed from is affirmed.