Rosa was convicted on a three count indictment charging him with violating 18 U.S.C.A. § 371, 26 U.S.C.A. § 4704(a), and 26 U.S.C.A. § 4705(a), all of which relate to the purchase and sale of Cocaine Hydrochloride, a narcotic drug. See Rosa v. United States, 5 Cir., 1968, 397 F.2d 401. Relief there was granted under 28 U.S.C.A. § 2255. Appellant's first ground of error falls squarely within the rule announced in Hardy v. United States, 1963, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331, and United States v. Atilus, 5 Cir., 1970, 425 F.2d 816, which requires a criminal conviction to be reversed if there is no transcript of the Trial Court proceedings available for the Defendant's use when he is preparing his appeal. Accordingly Appellant's 1960 conviction for the purchase and sale of a narcotic drug is reversed.
This construction of section 2255 would certainly be in keeping with other cases in this Circuit which have held that under section 2255 relief other than the right to immediate release from confinement can be granted. See Rosa v. United States, 5th Cir. 1968, 397 F.2d 401; James v. United States, 5th Cir. 1968, 388 F.2d 453. We conclude, therefore, that a prisoner serving consecutive sentences is "in custody" under any one of them for the purposes of section 2255.
Since Peyton v. Rowe, supra, courts of appeals have consistently interpreted the "custody" language of § 2255 within the same context of the new scope and meaning given to the writ of habeas corpus by that decision. See Crow v. United States, 397 F.2d 284 (10 Cir. 1968); Rosa v. United States, 397 F.2d 401 (5 Cir. 1968); Desmond v. United States Board of Parole, 397 F.2d 386 (1 Cir. 1968), cert. den. 393 U.S. 919, 89 S.Ct. 249, 21 L.Ed.2d 206 (1968). See also Orfield, Motion to Vacate Under 28 U.S.C. § 2255 (Part I), 2 Creighton L.Rev. 5, 19 n. 99 (1968).