Motion to Vacate under 28 U.S.C. Section 2255: Part Two
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Authors
Orfield, Lester B.
Issue Date
1969
Volume
2
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|In general, the motion procedure is not proper to attack an arrest, although there is occasional contrary authority. Accordingly, it has been held that the motion proceeding will not lie for error in the arrest where there is a sufficient ground for detention, such as indictment by a grand jury. Moreover, where the accused pleads guilty and is represented by counsel, the manner of arrest cannot be attacked by motion except to the extent that it might bear upon the voluntariness of his plea. The Ninth Circuit has held that a claim that a prisoner was illegally apprehended in Mexico by a state officer does not state a ground for a motion to vacate. A similar result was reached where the prisoner was kidnapped in a foreign country and brought to the United States for trial. It has also been held that an allegation that a jailer did not take a prisoner to a telephone following his arrest does not assert a proper ground for a motion to vacate.|To the contrary, however, it has been said that improper arrest without a warrant may be attacked by motion. In any event, where the validity of an arrest has not been raised at the original trial or on appeal therefrom, a. motion to vacate asserting invalidity of the arrest does not lie...
Description
Citation
2 Creighton L. Rev. 213 (1968-1969)
Publisher
Creighton University School of Law