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620 F2d 486 Mixon v. United States

620 F.2d 486

William Carl MIXON, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 79-1497.

United States Court of Appeals,
Fifth Circuit.

June 30, 1980.

Robin P. Hartman, Dallas, Tex. (Court-appointed), for plaintiff-appellant.

Arnaldo N. Cavazos, Jr., Shirley Baccus-Lobel, Asst. U.S. Attys., Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before TJOFLAT, POLITZ and HATCHETT, Circuit Judges.

PER CURIAM:

1

In 1962, petitioner William Carl Mixon pleaded guilty to three federal offenses and was sentenced to fifteen years imprisonment. Petitioner subsequently moved the court for a reduction of sentence, and his motion was denied. In December 1978, petitioner commenced these 28 U.S.C. § 2255 (1976) proceedings. The district court referred the matter to the magistrate. By coincidence, the magistrate happened to have been the Assistant United States Attorney who had represented the Government in the earlier proceedings on petitioner's motion for reduction of sentence, and, therefore, he was automatically disqualified to hear petitioner's section 2255 motion. 28 U.S.C. § 455(b)(3) (1976).

2

The disqualification was, unfortunately, neither noticed by the magistrate nor called to his attention by counsel, and he proceeded on to the merits of petitioner's motion. At the conclusion of the hearing, the magistrate entered findings and conclusions and recommended to the district court that petitioner's motion be denied. The district court adopted these findings and the recommendation, and denied petitioner's motion.

3

Because of the disqualification, we treat the proceedings and the disposition below as a nullity. Accordingly, the judgment appealed from is vacated, and the cause is remanded for further proceedings.

4

VACATED and REMANDED.