Hastings, Chief Judge, and Major, Senior Circuit Judge, and Cummings, Circuit Judge.
This is an appeal from an order of the district court denying the motion of defendant-appellant Lewis Ward to vacate a judgment of conviction and sentence of that court under which he is now in custody, such motion having been filed pursuant to the provisions of Title 28, U.S.C.A. § 2255.
Ward is presently serving two 12-year sentences concurrently as a result of his conviction, following a trial by jury, of both counts of a two-count indictment.
In Count I, Ward was charged with being a transferee of marihuana required to pay the tax imposed by 26 U.S.C.A. § 4741(a), [who] did acquire and obtain approximately 418.720 grams of marihuana without having paid such tax, in violation of 26 U.S.C.A. § 4744 (a) (1) of the United States Code.*fn1
In Count II, Ward was charged with transferring such marihuana to Ernest B. Jamison not in pursuance of a required written order, in violation of 26 U.S.C.A. § 4742(a) of the United States Code.*fn2
After Ward's conviction, but before the pronouncement of sentence, pursuant to the provisions of 26 U.S.C.A. § 7237 (c) (2), the trial court was advised that the conviction was Ward's third offense, which Ward affirmed in open court.
Ward was sentenced to twelve years on each count, to be served concurrently, pursuant to Title 26, U.S.C.A. § 7237(a) and (b).*fn3
On appeal, we affirmed Ward's judgment of conviction. United States v. Ward, 7 Cir., 360 F.2d 909 (1966).
Ward was represented by privately employed counsel at all stages of the proceeding through his prior appeal.
Ward filed a pro se motion in the district court, properly considered by that court as one seeking to vacate the judgment of conviction under 28 U.S.C.A. § 2255. This motion was denied by the district court, without a hearing, on the grounds that the motion, files and records conclusively showed that petitioner was entitled to no relief.
We granted Ward's petition for leave to proceed on appeal in forma pauperis and ordered counsel appointed to represent him on appeal.
Prior to appointed counsel's appearance, Ward filed a brief pro se charging inadequate representation by his counsel at the original trial and that he was denied the right to compulsory process when certain witnesses were not subpoened by his counsel. We have considered these claims and find they are without merit, a view shared by Ward's court-appointed counsel in oral argument herein.
Ward's able appellate counsel filed an additional brief, raising a ground for reversible error not heretofore presented to the district court nor raised by Ward pro se. Because this issue embraces a somewhat new and novel approach to an Eighth Amendment*fn4 question and suggests a substantial question of law, we have determined to consider it here without further reference to the district court. The Government has responded to the issue on brief and in oral argument.
The issue is precisely stated by appellant: "Does 26 U.S.C.A. § 7237 [the sentencing statute] impose a cruel and inhuman punishment upon marihuana offenders in view ...