OpenJurist

252 F2d 863 Upshaw v. United States

252 F.2d 863

William UPSHAW, Appellant,
v.
UNITED STATES of America, Appellee.

No. 14194.

United States Court of Appeals District of Columbia Circuit.

Argued February 4, 1958.

Decided February 27, 1958.

Mr. Dale E. Doty, Washington, D. C. (appointed by this Court), with whom Mr. Jerome Huisentruit, Melrose, Minn., was on the brief, for appellant.

Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Arthur J. McLaughlin, Asst. U. S. Attys., were on the brief, for appellee.

Before PRETTYMAN, BAZELON and BURGER, Circuit Judges.

PER CURIAM.

1

This is an appeal from the denial by the District Court of relief under 28 U.S.C. § 2255. Appellant and a co-defendant were convicted of possession of narcotics under 21 U.S.C.A. § 174.

2

The conviction of appellant's co-defendant Collis was reversed by this court on direct appeal because a jury could not have escaped a reasonable doubt as to possession of the narcotics by Collis or his participation in a purchase thereof. See Collis v. United States, 101 U.S.App. D.C. 160, 247 F.2d 566 (1957).

3

Appellant Upshaw now contends that the same evidence we held insufficient to go to the jury with respect to Collis is the only evidence against appellant and that his conviction must therefore, of necessity, be reversed. Apart from the fact that such an issue, namely the sufficiency of the evidence, is not properly raised by an application under Section 2255, we would hold that on this record the evidence with respect to this appellant, unlike the evidence against Collis, is sufficient to sustain the conviction, were we to reach that point.

4

Affirmed.