Hayman

This is an appeal from an order denying appellant’s motion to set aside the district court’s sentence of twenty years’ imprisonment on findings of guilt on six counts of an indictment. The order appealed from was made in a proceeding under 28 U.S.C.A. § 2255 . Appellant is confined in the federal prison at McNeil Island, Washington. His motion was filed with the clerk of the district court in Los Angeles, California.

Appellant’s motion tendered three issues. One required a trial of facts dehors the record of the trial on which he was convicted. As to the other two, I am in agreement with Judge Pope’s opinion disposing of them as without merit, as conclusively shown from the files and records of the case. Section 2255, par. 3.

The extended consideration of this opinion deals with two questions:

(A) Whether the motion and the proceedings thereunder "show that an issue was tendered respecting the denial to the appellant of the effective assistance of counsel, in that his counsel, without appellant’s knowledge and consent, was attorney for a prosecution’s witness, who was convicted of a crime and waiting sentence thereon, * and

(B) whether the motion of Section 2255 made in a…

(concurring).

I, too, think' the judgment should be reversed and dismissed but I view the case somewhat differently from the view expressed by the Chief Judge in his opinion.

It is my conviction that Section 2255 of the revised Judicial Code, Title 28 U.S.C.A., cuts to the very heart of the constitutional writ of habeas corpus as it applies to prisoners who are confined under federal convictions. It is true that the writ has been seriously abused ■ but a lethal remedy is neither valid nor justifiable. ■ Courts have gone a long way to stop abuses through causeless, scandalous or repetitious petitions for the issuance of the writ of habeas corpus, and the new Judicial Code, excluding Section 2255, goes further to the same end. It seems to me that it is quite unfortunate and unnecessary that the chapter in the Judicial Code which is devoted to habeas corpus should contain a section which, on its face, nullifies much of it. It is nothing new that *467 executive and legislative and some judicial impatience with the writ has led to attempts to emasculate it; Fortunately they have failed. Now in an attempt to enlarge the trial court’s right to correct certain faulty phases of the…

(dissenting).

I think that the questions discussed in the opinions of Judge Denman and of Judge Stephens are of much interest, so far as the abstract propositions stated by them are concerned. No doubt at some future time this court will'be required to decide these matters.

*469 But I think none of these questions are before us in this case. The discussion by Judge Stephens of the academic question as to whether the last paragraph of section 2255, in making the motion authorized by this section a, condition precedent to or a substitute for, an application for a writ of habeas corpus, is an invalid attempt to suspend the writ, is interesting, but not appropriate here. For this appellant is not one who has sought habeas corpus, and been denied relief because of the prohibitions of this paragraph. Were he in that situation he would be in a position to raise these questions. Such were Barrett v. Hunter, 10 Cir., 180 F.2d 510 , and Martin v. Hiatt, 5 Cir., 174 F.2d 350 . Appellant entered the court below expressly seeking the benefits of the section. He obtained the re-examination of the record which section 2255 called for. As I shall show he was not entitled to more.

Insofar as it…

On Petition for Rehearing,

The petition of the United States for rehearing, disagreeing with the dissenting opinion, concedes the validity of the motion’s pleading that Hayman has been denied the effective assistance of counsel, for it urges “that the judgment be reversed solely on the ground that a factual issue * * * [the effective assistance of counsel] is raised which requires appellant’s presence at the hearing below.”

One ground for a rehearing is the difference in views of the opinions of Judge Denman and Judge Stephens. This has been resolved, for, upon further considera *472 tion, Judge Denman concurs in a reversal on the ground that Section 2255 is unconstitutional because not a substitute for the writ of habeas corpus and yet denies that writ if the motion is denied.-

No legislation states that one wrongfully imprisoned is confined to a single application for a writ of habeas corpus. The Supreme Court in deciding that the wrongfully imprisoned person may make more than one application for the writ on the same issues could not have placed its decision on statutory grounds. It must have done so on the character of the constitutional writ.

Section 2255 grants no such…

187 F.2d 456 HAYMAN v. UNITED STATES. No. 12297. United States Court of Appeals Ninth Circuit. October 27, 1950. Rehearing Denied February 26, 1951. As Amended in Succeeding Opinion of February 27, 1951. Writ of Certiorari Granted May 14, 1951. See 71 S.Ct. 803 . Herman Hayman, in pro. per. Ernest A. Tolin, U. S. Atty., Norman W. Neukom, Jack E. Hildreth, Ray H. Kinnison, and Robert J. Kelleher, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee. Before DENMAN, Chief Judge, and STEPHENS and POPE, Circuit Judges. DENMAN, Chief Judge. 1 This is an appeal from an order denying appellant's motion to set aside the district court's sentence of twenty years' imprisonment on findings of guilt on six counts of an indictment. The order appealed from was made in a proceeding under 28 U.S. C.A. § 2255. Appellant is confined in the federal prison at McNeil Island, Washington. His motion was filed with the clerk of the district court in Los Angeles, California. 2 Appellant's motion tendered three issues. One required a trial of facts dehors the record of the trial on which he was convicted. As to the other two, I am in agreement with Judge Pope's opinion disposing of them as…