Joseph Orby Smith v. United States

The appellant filed in the court below two separate petitions evidently designed for the purpose of obtaining relief under 28 U.S.C. § 2255 . Appellant had been convicted in the court below upon an indictment charging him with robbery of a national bank and assault with a dangerous weapon. The first of his applications, designed to procure relief from the sentence imposed pursuant to his conviction, called a “Motion to Correct Judgment and Commitment” was filed June 25, 1956. The second such application was dated March 15, 1957, and called by him “Motion to Vacate Judgment of Conviction and Sentence.” Both applications were denied and from the orders denying them separate appeals were taken to this court which were consolidated for hearing. For convenience we deal with them in the inverse order of their filing.

The Petition Dated March 15, 1957.

This alleged that petitioner’s conviction was obtained in violation of due process of law for the reason that, (a) he was denied adequate or effective representation by counsel in that his court appointed attorney was unfamiliar with federal criminal procedure and practice, without experience in criminal proceedings, and that the…

On Petition for Rehearing

Before HEALY, POPE and CHAMBERS, Circuit Judges.

Our decision in this case dealt with two petitions which the appellant filed in the court below, both of which were denied. We sustained his appeal from a denial of the petition dated March 15, 1957, in which appellant asserted the invalidity of his conviction of a criminal offense because he had been denied due process in the course of his trial. Proceeding under § 2255 of Title 28 U.S.C., appellant claimed in that proceeding that his conviction was void. At the same time and in the same opinion we rejected the appellant’s appeal from a denial of another petition which was referred to as the petition of June 25, 1956. We rejected that appeal on the authority of Williams v. United States. 9 Cir.. 236 F.2d 894 , and other cases cited, saying that deeming that petition as having been filed under § 2255 we regarded it as not a proper remedy to afford the appellant the relief which he sought.

Upon this petition for rehearing appellant urges that we should have ordered a hearing in the court below upon this petition of June 25, 1956, in which appellant sought to have an adjudication that the sentence which…

259 F.2d 125 Joseph Orby SMITH, Appellant, v. UNITED STATES of America, Appellee. No. 15336. United States Court of Appeals Ninth Circuit. July 7, 1958. Rehearing Denied September 17, 1958. Joseph Orby Smith, pro. per. and Willis W. Jourdin, Oakland, Cal., for appellant. Laughlin E. Waters, U. S. Atty., Lloyd F. Dunn, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before HEALY, POPE and CHAMBERS, Circuit Judges. POPE, Circuit Judge. 1 The appellant filed in the court below two separate petitions evidently designed for the purpose of obtaining relief under 28 U.S.C. § 2255 . Appellant had been convicted in the court below upon an indictment charging him with robbery of a national bank and assault with a dangerous weapon. The first of his applications, designed to procure relief from the sentence imposed pursuant to his conviction, called a "Motion to Correct Judgment and Commitment" was filed June 25, 1956. The second such application was dated March 15, 1957, and called by him "Motion to Vacate Judgment of Conviction and Sentence." Both applications were denied and from the orders denying them separate appeals were taken to this court which were consolidated for hearing.…