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Coles v. Hanberry

May 3, 1979

ANDREW COLES, APPELLANT,
v.
JACK HANBERRY, WARDEN, U.S. PENITENTIARY, APPELLEE.



PRESENT: HON. MURRAY I. GURFEIN, HON. THOMAS J. MESKILL, Circuit Judges, HON. CHARLES E. WYZANSKI, Senior District Judge

Coles appeals from a judgment of the U.S. District Court for the Eastern District of New York (Platt, J.), entered on August 31, 1978, dismissing his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The defendant pleaded guilty to bank robbery in the District Court and was sentenced to twenty years 'mprisonment. The District Court held that the claim that his removal from State custody under writs of habeas corpus ad prosequendum to secure his appearance in the federal court on the bank robbery charges, after a detainer had been filed, violated his rights under the Interstate Agreement on Detainers was not cognizable under a § 2255 motion after his plea of guilty. Edwards v. United States, 564 F.2d 652 (1977). We agree. Coles raises for the first time on his appeal pro se the claim of ineffective assistance of counsel, on the ground that counsel did not assert a violation of the Agreement. Since this issue was not raised in the District Court, it is not available on appeal from denial of the § 2255 motion. See United States v. Hermann, 524 F.2d 1103 (2d Cir. 1975); and see Fields v. United States, 438 F.2d 205 (2d Cir.), cert. denied, 403 U.S. 907 (1971). Moreover, there was no violation of the Agreement. Coles was not a sentenced State prisoner until September 11, 1975. When, after the State sentence, he was brought into the Eastern District on October 28, 1975, he was held until October 31, 1975 when he was sentenced. In any event, even before his State sentence, he was always promptly returned to State detention where he was awaiting his State sentence. The order denying the motion to vacate sentence is AFFIRMED.

19790503

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