Opinion
No. 17280.
Argued December 5, 1968.
Decided December 18, 1968.
Aurelio Munoz, Asst. Defender, Defender Association of Phila., Philadelphia, Pa., Melvin Dildine, Chief, Appeals Division, Herman I. Pollock, Defender, on the brief, for appellant.
Morton Hollander, Chief, Appellate Section, Civil Division, Dept. of Justice, Washington, D.C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Drew J.T. O'Keefe, U.S. Atty., Alan S. Rosenthal, Michael C. Farrar, Attys., Dept. of Justice, Washington, D.C., on the brief), for appellee.
Before HASTIE, Chief Judge, and KALODNER and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
This case is before the court on appeal from a February 13, 1968, order of the District Court, 279 F. Supp. 631, denying a 1967 Petition for Writ of Habeas Corpus, or for a Writ of Error Coram Nobis Motion seeking to attack a 1954 court martial conviction on the ground that it was based on evidence obtained through an illegal search and seizure. Appellant was serving in 1967 a March 16, 1964, sentence imposed by a Pennsylvania court, which sentence recited that it was imposed "in view of his prior record." Counsel conceded during the argument that the March 16, 1964, sentence was vacated by the state court in March 1968 and a new sentence of probation was imposed.
The lengthy brief filed with the District Court (Document 12 in C.A. 43,659) stated that the jurisdictional questions raised (p. 3) were the right of appellant to a writ of habeas corpus or, alternatively, to coram nobis.
In view of this concession, the February 13, 1968, District Court order will be vacated and the case will be remanded with directions that this action be dismissed as moot, without prejudice to any rights appellant may have to challenge the March 1968 sentence or the 1954 courtmartial conviction.