Harry E. Chard v. United States

578 F.2d 1317 Harry E. CHARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 77-3115. United States Court of Appeals, Ninth Circuit. July 28, 1978. Kenneth Kanev, Seattle, Wash., for petitioner-appellant. Charles Pinnell, Seattle, Wash., for respondent-appellee. Appeal from the United States District Court for the Western District of Washington. Before BROWNING and WALLACE, Circuit Judges, and RENFREW, * District Judge. RENFREW, District Judge. Chard asks that we reverse the district court's refusal to grant him section 2255 relief. He asserts two contentions, neither of which has merit. Chard first argues that the district court erred in declining to conduct a full evidentiary hearing on the issue of whether he had been adequately informed of his appeal rights following his underlying conviction. See Fed.R.Crim.P. 32(a)(2). The district judge declined to consider this allegation because it had been previously raised and rejected in Chard's earlier "Motion for Permission to File a Belated Appeal." Section 2255 expressly provides that "(t)he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of…

Chard asks that we reverse the district court’s refusal to grant him section 2255 relief. He asserts two contentions, neither of which has merit.

*1318 Chard first argues that the district court erred in declining to conduct a full evidentiary hearing on the issue of whether he had been adequately informed of his appeal rights following his underlying conviction. See Fed.R.Crim.P. 32(a)(2). The district judge declined to consider this allegation because it had been previously raised and rejected in Chard’s earlier “Motion for Permission to File a Belated Appeal.”

Section 2255 expressly provides that “[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Although the district court had previously considered Chard’s claim in acting on his motion for permission to file a late appeal rather than an earlier 2255 application, we do not believe this difference to be significant. See Williams v. United States, 466 F.2d 672 (9 Cir. 1972) (previous determination of a motion to withdraw plea).

Pursuant to Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963), the district court was…

dissenting:

While I would prefer the result reached by the majority, I reluctantly conclude that the majority’s analysis cannot be squared with a prior decision of this court. I am, therefore, compelled to dissent.

In Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963), the Supreme Court explained that a section 2255 motion may be denied without a hearing “only if . . . (3) the ends of justice would not be served by reaching the merits of the subsequent application.” Id. at 15 , 83 S.Ct. at 1077 (emphasis added). Clearly, the reciprocal implication of this assertion is that a hearing must be held if the ends of justice would be served by so doing.

In Tannehill v. Fitzharris, 451 F.2d 1322 (9th Cir. 1971), we partially fleshed out the day-to-day application of Sanders by holding that

Id. at 1324 (emphasis added).

In this case, the majority asserts that the district judge’s determination regarding the ends of justice “may be implied” from the text of the magistrate’s report. Although I might agree that the report suggests that the judge made such a determination, I cannot equate this implication with the “specific finding” requirement of Tannehill .…