Winhoven

This is an appeal from an order of the district court denying Winhoven’s motion under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to vacate a judgment adverse to him in a 28 U.S.C. § 2255 proceeding. The grounds of the motion to vacate are that the 2255 judgment against him is “void” because Winhoven in the hearing of his motion was denied procedural due process of law in violation of the Fifth Amendment by

(a) Failing to act upon his motion to be present at the hearing on his motion to vacate judgment.

(b) Failing to act upon his writ of habeas corpus requiring his presence at such hearing on motion to vacate judgment.

(cj Failing to act upon his motion for issuance of subpoenae to witnesses those names and addresses were therein stated.

Rule 60(b) provides, inter alia, as a fourth and separate ground for setting aside a judgment that it is “void.”

The judgment of the district court on this 60(b) motion ignores this contention that the judgment sought to be set aside is void. The language is:

We hold the court erred in failing to consider Winhoven’s contention that the 2255 judgment is void. If void for violation of the due process clause of the Fifth…