Luigi Gelfuso v. Griffin B. Bell, Attorney General, John Joseph Vaccaro, Jr. v. United States

Gelfuso and Vaccaro were each convicted of one count of conspiracy and one count of participating in an illegal gambling business in violation of 18 U.S.C. §§ 371 , 1955; Vaccaro was also convicted for violating 18 U.S.C. § 1952 , which prohibits interstate travel in aid of racketeering enterprises (the same gambling business). Both filed appeals which resulted in affirmances of the convictions. They subsequently filed motions pursuant to 28 U.S.C. § 2255 to vacate or correct their sentences. The district judge denied the motions and they appeal. We affirm.

I

Gelfuso and Vaccaro first argue that their petitions ought to have been determined by a judge other than the one before whom the initial trial was held. They contend that our recent decision in Farrow v. United States, 580 F.2d 1339 (9th Cir. 1978) (en banc), which held explicitly that a new judge is not required for a section 2255 motion based on Tucker claims, does not foreclose their argument that a new judge is required for their Townsend claims. Specifically, they cite a footnote in Farrow which, they contend, appears to suggest that the withdrawn panel opinion — which, among other things, implied that a second judge…