Winhoven

Winhoven moves to proceed in forma pauperis in his appeal from the denial of a 60(b) motion to reopen a 28 U.S.C. § 2255 proceeding to set aside a sentence to the federal penitentiary. Such a motion requires a showing that the moving party has a cause of action and that if he has not and his appeal is frivolous, it will be dismissed. 28 U.S.C. § 1915 (a) and (d).

This 2255 proceeding was brought to set aside a sentence of twenty-five years’ imprisonment for the crime of a violent attempt to rob a post office clerk in violation of Title 18 U.S.C. § 320 [now 1948 Revision, 18 U.S.C. § 2114 ], From the adverse decision in the 2255 proceeding, Winhoven did not make a motion for a new trial or rehearing and did not appeal. Subsequently, he filed an application for writ of habeas corpus which on appeal we treated as a second 2255 motion. There we stated of the second 2255 motion that: “The decision on the first motion is not void and subject to collateral attack in such a second motion.” Winhoven v. Swope, 9 Cir., 195 F.2d 181, 183 . Not having sought certiorari, this decision is the law of the case.

This was followed by the instant proceeding in which he attacked the 2255 judgment…