416 F2d 22 United States v. Eaton

416 F.2d 22

UNITED STATES of America, Plaintiff-Appellee,
v.
Frazier EATON, Defendant-Appellant.

No. 23152.

United States Court of Appeals, Ninth Circuit.

Sept. 16, 1969.

Frazier Eaton, in pro. per.

Eugene G. Cushing, U. S. Atty., Luzerne E. Hufford, Jr., Asst. U. S. Atty., Seattle, Wash., for appellee.

Before MERRILL and CARTER, Circuit Judges, and KILKENNY, District Judge.*

PER CURIAM:

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1

Appellant's third motion for relief under 28 U.S.C. Sec. 2255, denied without a hearing by the District Court, presents two claims:

2

His claim respecting right to appeal was given a hearing in 1964 and was decided adversely to him. Eaton v. United States, 348 F.2d 919 (9th Cir. 1965). Section 2255 by its terms provides that '[a] successive motion for similar relief' need not be entertained. See Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

3

However, his claim of inadequate representation due to counsel's failure to subpoena an important witness has not yet been squarely met on the merits. See Eaton v. United States, 384 F.2d 235 (9th Cir. 1967). In his present motion he has, in our view, finally alleged facts warranting a hearing on this claim. The fact that his trial counsel requested the return of the subpoena unexecuted is not conclusive on this issue since his counsel's loyalty and competence have been placed in question.

4

Reversed and remanded.

*

Hon. John F. Kilkenny, United States District Judge for the District of Oregon, sitting by designation