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ALLEN v. UNITED STATES

No. 6502.

349 F.2d 362 (1965)

Ernest L. ALLEN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

United States Court of Appeals First Circuit.

Decided August 13, 1965.

Attorney(s) appearing for the Case

F. Lee Bailey, Boston, Mass., for appellant.

Paul L. Normandin, Asst. U. S. Atty., with whom Louis W. Janelle, U. S. Atty., and John D. McCarthy, Asst. U. S. Atty., were on brief, for appellee.

Before ALDRICH, Chief Judge, LUMBARD, Chief Judge, and LEWIS, Circuit Judge.

ALDRICH, Chief Judge.

This case involves a narrow question. It is whether a criminal defendant while at large on bail pending commencement of service of a federal sentence can proceed under 28 U.S.C. § 2255, or whether he must first surrender to the custody of the marshal. More exactly, it is whether he meets the statutory, and hence jurisdictional, requirement of being "in custody under sentence." The district court held that he does not, and dismissed the petition...

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