Berlin Acey Odom v. United States

This is an appeal from an order denying Odom’s application for relief under § 2255, Title 28, United States Code. The conviction under which Odom is serving time was affirmed by the same panel of this court now sitting on the case. United States v. Odom (9 Cir. 1970) 423 F.2d 875 .

Odom raises three questions on appeal: (1) Should the trial judge have disqualified himself from presiding over the 2255 hearing? (2) Did Odom establish he was mentally incompetent to waive counsel at trial? (3) Does Wade v. United States (9 Cir. 1970) 426 F. 2d 64 require a new trial in this case? We affirm.

This circuit has held that the trial or sentencing judge is not disqualified from hearing and deciding a motion pursuant to 28 U.S.C., § 2255 . Dukes v. United States (9 Cir. 1969) 407 F.2d 863 , cert. denied, 396 U.S. 897 , 90 S.Ct. 193 , 24 L.Ed.2d 174 ; King v. United States (9 Cir. 1968) 402 F.2d 58 .

The trial court held a hearing, took evidence on the mental competency issue and found against Odom. His findings are not clearly erroneous.

The only substantial issue posed in the present appeal involves the limited retroactivity of Wade v. United States (9 Cir. 1970) 426 F.2d 64 . That ease…