Raymond John Wagner v. United States

418 F.2d 618 Raymond John WAGNER, Appellant, v. UNITED STATES of America, Appellee. No. 22112. United States Court of Appeals Ninth Circuit. Nov. 19, 1969. Raymond John Wagner, in pro. per. Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim. Div., Ronald S. Morrow, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before BARNES, DUNIWAY and ELY, Circuit Judges. DUNIWAY, Circuit Judge: 1 On February 14, 1957, Wagner was adjudged guilty of violating 18 U.S.C. 2114. He and two others were found to have held up and robbed two postal officials in a car carrying postal funds to a bank. A possible eye witness was a man in a '7-Up' truck nearby, who gave one of the victims the license number of the get-away car. The government declined to give the name and address of this witness to Wagner before trial. On appeal, we held that this was not error, and affirmed. Wagner v. United States, 9 Cir., 1959, 264 F.2d 524 . 2 On October 25, 1965, Wagner filed a motion under 28 U.S.C. 2255. The trial judge denied it, without hearing, on November 2, 1965. On December 20, 1965, Wagner filed a motion for reconsideration in which, for the first time, he alleged that there had…

On February 14, 1957, Wagner was adjudged guilty of violating 18 U.S.C. § 2114 . He and two others were found to have held up and robbed two postal officials in a car carrying postal funds to a bank. A possible eye witness was a man in a “7-Up” truck nearby, who gave one of the victims the license number of the get-away car. The government declined to give the name and address of this witness to Wagner before trial. On appeal, we held that this was not error, and affirmed. Wagner v. United States, 9 Cir., 1959, 264 F.2d 524 .

On October 25, 1965, Wagner filed a motion under 28 U.S.C. § 2255 . The trial judge denied it, without hearing, on November 2, 1965. On December 20, 1965, Wagner filed a motion for reconsideration in which, for the first time, he alleged that there had been “illegal suppression of evidence favorable to his defense by the government.” The motion was denied. On appeal, we affirmed the November 2 order, and declined to consider the motion for reconsideration, saying:

Wagner v. United States, 9 Cir., 1967, 374 F.2d 86, 87 .

In response to our views, Wagner filed a new § 2255 motion on March 29, 1967. To the moving papers was attached an affidavit containing…

(dissenting):

I dissent. This petitioner has been before this court twice before. Wagner v. United States, 264 F.2d 524 (1959). The denial of his earlier § 2255 petition was affirmed. Wagner v. United States, 374 F.2d 86 (9th Cir. 1967).

In Wagner’s appeal from his conviction, one of the grounds claimed for reversal was that the trial court erred in not directing the Government to give Wagner the name and address of a Seven-up truck driver. Cf. Wagner, supra, 264 F.2d 524 at 537 . With the long transcript of the trial available to our reviewing panel, this issue was considered and determined adversely to appellant.

*622 On February 6, 1967, a panel of this court (Judges Barnes, Ely and Peckham, the latter sitting by assignment, with Judge Ely writing the per curiam opinion) affirmed a denial of relief under § 2255, saying the same three errors urged in the petition “had been rejected by our court on the direct appeal from the judgment of conviction.”

Appellant then filed a second § 2255 petition which did not raise the same three questions by use of the same language utilized on his first motion, but which did, in my opinion, raise a precisely similar issue to that raised on…