Richard P. Jack v. United States, 435 F.2d 317 (9th Cir. 1970). · Go Syfert
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Richard P. Jack v. United States, 435 F.2d 317 (9th Cir. 1970). Cases Citing This Book View Copy Cite
30 citation events (12 in the last 25 years) across 9 distinct courts.
Strongest positive: Anthony David Flores v. Warden (cacd, 2024-07-03)
Treatment trajectory · 1971 → 2026 · click a year to view as-of
1971 1998 2026
Top citers, strongest first. 22 distinct citers.
discussed Cited as authority (rule) Anthony David Flores v. Warden
C.D. Cal. · 2024 · confidence medium
The Ninth Circuit has held that “‘[e]xcept under most unusual circumstances .. . no defendant in a federal criminal prosecution is entitled to have a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence.” Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988) (quoting Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970)); see also United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (holding that a petitioner may not simultaneously pursue a direct appeal and a section 2241 petition on the same grounds).
discussed Cited as authority (rule) Adedayo Sanusi v. United States
C.D. Cal. · 2024 · confidence medium
The Ninth Circuit has held that “[e]xcept under most unusual circumstances ... no defendant in a federal criminal prosecution is entitled to have a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence.” Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988) (quoting Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970)).
discussed Cited as authority (rule) Michael L. Watts v. United States
C.D. Cal. · 2023 · confidence medium
The Ninth Circuit has held that “[e]xcept under most unusual circumstances ... no defendant in a federal criminal prosecution is entitled to have a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence.” Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988) (quoting Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970)).
discussed Cited as authority (rule) Taylor v. United States
W.D. Wash. · 2023 · confidence medium
The Court has further 24 noted that it “need not resolve this discrepancy, however, because the district court should 25 refrain from hearing [petitioner’s] § 2255 motion until after he exhausts his direct appellate 26 review rights under either theory.” Id. 27 Even those Ninth Circuit opinions that have recognized this practice as a “rule of 28 forbearance,” rather than a “jurisdictional impediment,” have cautioned that “[t]he District Court 1 may entertain a collateral motion during the pendency of a direct appeal [only] if ‘extraordinary 2 circumstances’ outweigh the co…
discussed Cited as authority (rule) Rodriguez v. United States
D.N.M. · 2021 · confidence medium
See, e.g., United States v. Robinson, 8 F.3d 398, 405 (7th Cir.1993); United States v. Gordon, 634 F.2d 638 , 638–39 (1st Cir.1980); United States v. Davis, 604 F.2d 474, 484 (7th Cir.1979); Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970); Womack v. United States, 395 F.2d 630, 631 (D.C.Cir.1968).
discussed Cited as authority (rule) United States v. Hernando Casaran-Rivas
11th Cir. · 2009 · confidence medium
United States v. Khoury, 901 F.2d 975, 976 (11th Cir.1990); see also Kapral v. United States, 166 F.3d 565, 570 (3d Cir.1999) (“[A] a collateral attack is generally inappropriate if the possibility of further direct review remains open”); Welsh v. United States, 404 F.2d 333 (5th Cir.1968) (“A motion to vacate sentence under 28 U.S.C. § 2255 -will not *273 be entertained during the pendency of a direct appeal, inasmuch as the disposition of the appeal may render the motion moot”); Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir.1998) (“[I]in the absence of extraordinary circumstan…
discussed Cited as authority (rule) Ralph McIver v. United States
11th Cir. · 2002 · confidence medium
See Welsh v. United States, 404 F.2d 333 (5th Cir.1968) (binding authority in the Eleventh Circuit under Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc)); see also Rules Governing 2255 Proceedings, Rule 5, advisory committee note; United States v. Cook, 997 F.2d 1312, 1319 (10th Cir.1993); United States v. Gordon, 634 F.2d 638, 638-39 (1st Cir.1980); United States v. Davis, 604 F.2d 474, 484 (7th Cir.1979); Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970); Womack v. United States, 395 F.2d 630, 631 (D.C.Cir.1968); Masters v. Eide, 353 F.2d 517 (8th Cir.1965).
discussed Cited as authority (rule) Starnes v. United States
6th Cir. · 2001 · confidence medium
This Court held in Capaldi v. Pontesso, 135 F.3d 1122 (6th Cir.1998), that “in the absence of extraordinary circumstances, a district court is precluded from considering a § 2255 application for relief during the pendency of the applicant’s direct appeal.” Id. at 1124; accord United States v. Davis, 604 F.2d 474, 484 (7th Cir.1979); Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970); Welsh v. United States, 404 F.2d 333 (5th Cir.1968); Masters v. Eide, 353 F.2d 517, 518 (8th Cir.1965).
discussed Cited as authority (rule) Starnes v. United States
6th Cir. · 2001 · confidence medium
This Court held in that Capaldi v. Pontesso, 135 F.3d 1122 (6th Cir.1998), that “in the absence of extraordinary circumstances, a district court is precluded from considering a § 2255 application for relief during the pendency of the applicant’s direct appeal.” Id. at 1124; accord United States v. Davis, 604 F.2d 474, 484 (7th Cir.1979); Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970); Welsh v. United States, 404 F.2d 333 (5th Cir.1968); Masters v. Eide, 353 F.2d 517, 518 (8th Cir.1965).
discussed Cited as authority (rule) Leonard Louis Capaldi v. Stephen Pontesso, Warden
6th Cir. · 1998 · confidence medium
See United States v. Davis, 604 F.2d 474, 484 (7th Cir.1979) (“Ordinarily a section 2255 action is improper during the pendency of an appeal from the conviction.”); Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970) (“Except under most unusual circumstances, not here present, no defendant in a federal criminal prosecution is entitled to have a direct appeal and a § 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence.”); Welsh v. United States, 404 F.2d 333 (5th Cir.1968) (“A motion to vacate sentence under 28 U.S.C. § 2255 will not be…
discussed Cited as authority (rule) United States v. Lewis Aaron Cook
10th Cir. · 1993 · confidence medium
See Rules Governing § 2255 Proceedings, Rule 5, advisory committee note; see also United States v. Gordon, 634 F.2d 638, 638-39 (1st Cir.1980); United States v. Davis, 604 F.2d 474, 484 (7th Cir.1979); Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970), cert. denied, 402 U.S. 933 , 91 S.Ct. 1530 , 28 L.Ed.2d 867 (1971); Welsh v. United States, 404 F.2d 333 (5th Cir.1968); Womack v. United States, 395 F.2d 630, 631 (D.C.Cir.1968); Masters v. Eide, 353 F.2d 517 (8th Cir.1965).
discussed Cited as authority (rule) United States v. Ramon Angel Caro
9th Cir. · 1993 · confidence medium
We have jurisdiction under 28 U.S.C. § 2255 , and we reverse. 3 A defendant in a federal criminal prosecution is not entitled to have "a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence." Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970), cert. denied, 402 U.S. 933 (1971).
discussed Cited as authority (rule) United States v. Wilfredo Gomez
9th Cir. · 1992 · confidence medium
These contentions are without merit. 9 Although a defendant is generally not entitled to have both a direct appeal and a section 2255 proceeding considered simultaneously, see Tripati v. Henman, 843 F.2d 1161 , 1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988); Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir.1987), we nonetheless elect to address the merits of Gomez's section 2255 motion, see Jack v. United States, 435 F.2d 317, 319 (9th Cir.1970), cert. denied, 402 U.S. 933 (1971). 10 We review de novo the denial of a section 2255 motion.
discussed Cited as authority (rule) United States v. Goldberg
C.D. Cal. · 1991 · confidence medium
The Ninth Circuit stated in Taylor that “[t]he District Court may entertain a collateral motion during the pendency of a direct appeal if ‘extraordinary circumstances’ outweigh the consideration of administrative convenience and judicial economy.” Taylor, 648 F.2d at 572 , quoting Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970) (per curiam), cert. denied, 402 U.S. 933 , 91 S.Ct. 1530 , 28 L.Ed.2d 867 (1971).
discussed Cited as authority (rule) Anant Kumar Tripati v. Gary L. Henman
9th Cir. · 1988 · confidence medium
This Court has held that “[ejxcept under most unusual circumstances ... no defendant in a federal criminal prosecution is entitled to have a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence.” Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970).
discussed Cited as authority (rule) Gordon Dean Landis v. United States
6th Cir. · 1987 · confidence medium
United States v. Esposito, 771 F.2d 283, 288 (7th Cir. 1985), cert. denied, 106 S.Ct. 1187 (1986); United States v. Roberts, 749 F.2d 404, 407 (7th Cir. 1984), cert. denied, 470 U.S. 1058 (1985); United States v. Gordon, 634 F.2d 638, 638-39 (1st Cir. 1980); United States v. Davis, 604 F.2d 474, 484 (7th Cir. 1979); Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970) (per curiam); Welsh v. United States, 404 F.2d 333 (5th Cir. 1968) (per curiam); Womack v. United States, 395 F.2d 630, 631 (D.C.
discussed Cited as authority (rule) Barry Jay Feldman v. Gary L. Henman
9th Cir. · 1987 · signal: cf. · confidence medium
Cf. United States v. Currie, 589 F.2d 993, 995 (9th Cir.1979) (“Issues disposed of on a direct appeal are not reviewable in a subsequent § 2255 proceeding.”) and Egger v. United States, 509 F.2d 745, 748 (9th Cir.1975) (same) with Jack v. United States, 435 F.2d 317, 319 (9th Cir.1970) (“The fact that the legal claim has been determined in an appellate proceeding by this court is not necessarily determinative in a section 2255 proceeding.
examined Cited as authority (rule) United States v. Richard E. Taylor (4×) also: Cited "see"
9th Cir. · 1981 · confidence medium
Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970) (per curiam), cert. denied, 402 U.S. 933 , 91 S.Ct. 1530 , 28 L.Ed.2d 867 (1971); Womack v. United States, 395 F.2d 630, 631 (D.C.
discussed Cited as authority (rule) United States v. Jacob John Gordon
1st Cir. · 1980 · confidence medium
Because we recognize and endorse the policy considerations that have led other courts to hold that in the absence of “extraordinary circumstances,” the “orderly administration of criminal justice” precludes a district court from considering a § 2255 motion while review of the direct appeal is still pending, see United States v. Davis, 604 F.2d 474, 484 (7th Cir. 1979); Jack v. United States, 435 F.2d 317, 318 (9th Cir. 1970); Welsh v. United States, 404 F.2d 333 (5th Cir. 1968); Womack v. United States, 395 F.2d 630 (D.C.Cir. 1968); Masters v. Eide, 353 F.2d 517, 518 (8th Cir. *639 19…
discussed Cited as authority (rule) Rowan v. United States
C.D. Cal. · 1973 · confidence medium
Devinney v. United States of America, [Slip Opinion # 72-2510, dated February 20, 1973]; Jack v. United States, 435 F.2d 317, 319-320 (9th Cir. 1970), cert, denied, 402 U.S. 933 , 91 S.Ct. 1530 , 28 L.Ed.2d 867 (1971).
discussed Cited "see" Moore v. United States
S.D. Cal. · 2023 · signal: accord · confidence high
The exception is when 16 “‘extraordinary circumstances’ outweigh the considerations of administrative 17 convenience and judicial economy.” Id. (collecting cases); accord Jack v. United 18 States, 435 F.2d 317, 318 (9th Cir. 1970) (per curiam) (“Except under most unusual 19 circumstances, . . . no defendant in a federal criminal prosecution is entitled to have 20 a direct appeal and a section 2255 proceeding considered simultaneously in an effort 21 to overturn the conviction and sentence.”). 22 The record here suggests no extraordinary or unusual circumstances, and 23 consideratio…
cited Cited "see, e.g." United States v. Hill
9th Cir. · 1990 · signal: see also · confidence medium
Taylor, 648 F.2d at 572 ; see also Jack v. United States, 435 F.2d 317, 318 (9th Cir1970) (per curiam).
Richard P. JACK, Appellant,
v.
UNITED STATES of America, Appellee
24888_1.
Court of Appeals for the Ninth Circuit.
Dec 2, 1970.
435 F.2d 317
Richard P. Jack, in pro. per., John Hyland, U.S.Atty., Sacramento, Cal., for appellee.
Hamley, Ely, Wright.
Cited by 27 opinions  |  Published
PER CURIAM:

The appeal in this proceeding under 28 U.S.C. § 2255 is subject to dismissal because appellant also has pending before another panel of this court a direct appeal from the conviction and sentence here under attack. Jack v. United States, Docket No. 23,541, submitted on November 11, 1970. Except under most unusual circumstances,' not here present, no defendant in a federal criminal prosecution is entitled to have a direct appeal and a section 2255 proceeding considered simultaneously in an effort to overturn the conviction and sentence. However, we elect to deal with this appeal on the merits.

On March 23, 1966, following proceedings which extended over several years and which are not relevant here, Richard P. Jack was convicted, on a jury verdict, under counts one and three of a four-count indictment charging narcotics offenses. The offenses occurred in July and November, 1961. On “ March 31, 1966, concurrent sentences of imprisonment for twenty years were entered.

Jack appealed. As to his conviction on count one, he contended that it was error to receive evidence of a conversation transmitted to a state narcotics agent by means of a Fargo device concealed on an informer who was purchasing narcotics from Jack in the latter’s home. We rejected this Fourth Amendment contention on the grounds that: (1) the overheard conversation was used solely to corroborate the informer’s testimony, and (2) Jack was using his home as a place of business and the recorded conversation concerned solely the specific business transaction for which the informer had been invited into the home. Jack v. United States, 387 F.2d 471, 472 (9th Cir. 1967).

As to his conviction on count three, which related to a different transaction, this court remanded for a determination as to whether the scope of a search was unconstitutionally broad. The opinion also provided that if, on remand, the conviction on count three were set aside, the district court should determine whether the sentence on count one had been validly increased from eighteen years to twenty years as a result of a remand in a prior section 2255 proceeding. Jack, supra, at 473-474.

In the remanded proceedings, the district court, on August 22, 1968, reduced to eighteen years the Sentences on counts one and three. Since the sentences were concurrent the district court made no determination as to the legality of the count-three search. Jack then took the appeal docketed as No. 23,541 which is now pending before another panel.

Jack filed the section 2255 motion now before us on June 9, 1969. In this motion, Jack’s only ground for relief is that the evidence obtained from him with reference to count one, obtained by means of an informer wearing a transmitter “accomplished by a physical trespass” constituted an unreasonable search and seizure. [1] The district court denied the motion without granting an evidentiary hearing stating that such a proceeding was “unnecessary for a determination of the issues petitioner now seeks to raise.”

The Supreme Court has recently decided Kaufman v. United States, 394 U. S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), dealing with the conditions requiring the grant of an evidentiary hearing in a section 2255 proceeding. The Court held that such conditions are identical to those requiring the grant of an evidentiary hearing in a federal habeas corpus proceeding for a state prisoner except that the adequacy of the[*319] fact-finding procedures established by the federal rules need not be examined. Id. at 226-227, 89 S.Ct. 1068. Therefore, as in the case of state prisoners, the criteria of Townsend v. Sain, 372 U. S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) apply to the consideration of the district court’s action here.

Jack is seeking to raise the identical legal issue which was determined on the prior direct appeal. The fact that the legal claim has been determined in an appellate proceeding by this court is not necessarily determinative in a section 2255 proceeding. There are circumstances where the district court would be compelled, even in the face of such an appellate determination, to hold an evidentiary hearing on the claims of a federal prisoner. [2]

Here, however, there are no such circumstances. The facts which Jack alleges were considered in a full and fair hearing in his original pre-trial motion to suppress this evidence. The district court was therefore not required, under Townsend, to grant an evidentiary hearing in order to dispose of this section 2255 claim.

The merits of the legal question petitioner presents were raised and adjudicated against Jack in Jack v. United States, 387 F.2d 471 (9th Cir. 1967). As before stated, no additional facts are here alleged. While Jack cites additional cases, none of them call for re-examination of our prior disposition of this question of law. It is true that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), decided after our prior opinion, announces some new principles governing Government eavesdropping activities. But Katz was decided on December 18, 1967, and is not to be applied retroactively with regard to Jack’s conviction and sentence in 1966. See Desist v. United States, 394 U.S. 244, 89 S.Ct. 1048, 22 L.Ed.2d 248 (1969).

In his reply brief on this appeal, Jack asserts that his present argument differs materially from his prior one, in that he has here, for the first time, raised the issue that his Fourth Amendment rights were contravened under the physical trespass doctrine announced in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). The fact is, however, that in our prior opinion we dealt specifically with that argument, citing Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). Lewis distinguishes Silverman on grounds which are equally applicable here. See Jack, 387 F.2d at 472. [3]

Under section 2255, a motion thereunder may be denied without hearing if the motion, files and record in the case conclusively show that the prisoner[*320] is entitled to no relief. In view of the history of this case, as reviewed above, we think the district court did not err in so disposing of this motion.

Affirmed.

1

. In this section 2255 motion, Jack presents, as a second question, whether he has standing to object to the evidence obtained by means of electronic surveillance.

2

. Some circumstances under which Townsend requires an evidentiary hearing are set out in a dissenting opinion (later approved by the Supreme Court) by Judge Wright of the District of Columbia Court of Appeals:

“Where a federal trial or appellate court has had a ‘say’ on a federal prisoner’s claim, there may be no need for collateral relitigation. But what if the federal trial or appellate court said nothing because the issue was not raised? What if it is unclear whether the ‘say’ was on the merits? What if new law has been made or facts uncovered relating to the constitutional claim since the trial and appeal? What if the trial or appellate court based its rulings on findings of fact made after a hearing not ‘full and fair’ within the meaning of Townsend v. Sain * * *?”
Thornton v. United States, 125 U.S. App.D.C. 114, 368 F.2d 822, 831 (1966) (approved by the Supreme Court, Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 22 L.Ed.2d 227

(1969).

3

. The law relating to electronic surveillance may undergo further changes as the result of the granting of certiorari in United States v. White, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559 (1969) (cert. granted), 396 U.S. 1035, 90 S.Ct. 677, 24 L.Ed.2d 679 (1970) (restored for re-argument). But as the law now stands Jack’s conviction and sentence on count one is valid.