Robert Walter Roberts, Appellant, v. United States of America, Appellee, 365 F.2d 251 (9th Cir. 1966)

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U.S. Court of Appeals for the Ninth Circuit - 365 F.2d 251 (9th Cir. 1966) August 15, 1966

Robert Walter Roberts, in pro. per.

William P. Copple, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before BROWNING, JOHNSEN*  and DUNIWAY, Circuit Judges.


Appeal from an order denying a motion made under section 2255, Title 28, U.S.C.

It appears that Roberts is not now serving the sentence to which his motion is directed, but is serving a prior valid sentence which has not yet expired. For that reason, the trial court correctly denied the present motion. When Roberts has completed serving the prior sentence, he will then be in a position to renew his motion and to bring before the trial court the substantial questions that he raises as to the validity of the sentence of August 23, 1965, the validity of the order vacating that sentence of November 4, 1965, and the effect of his purported discharge under that sentence on November 5, 1965.

Affirmed without prejudice to the renewal of the motion in the trial court at an appropriate time.


Harvey M. Johnsen, 8th Circuit, sitting by designation