221 F2d 793 Winhoven v. United States

221 F.2d 793

Willard A. WINHOVEN, Appellant,


UNITED STATES of America, Appellee.

No. 14565.

United States Court of Appeals Ninth Circuit.

April 14, 1955.

Rehearing Denied May 11, 1955.

Willard A. Winhoven, pro se.

Lloyd H. Burke, U.S. Atty., Richard H. Foster, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before ORR and FEE, Circuit Judges, and JAMES M. CARTER, District judge.


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On July 9, 1954, appellant Winhoven filed, in the United States District Court for the Northern District of California, Southern Division, a motion made pursuant to the provisions of section 2255, Title 28, U.S.C.A., asking that a certain judgment of conviction entered September 4, 1942, be vacated. Appellant is now incarcerated under the terms of said judgment.


The District Court, on July 16, 1954, refused to entertain said motion.


Appellant previously had filed a motion under said section 2255, Title 28, U.S.C.A., which was decided adversely to him. He did not appeal.


Subsequently appellant applied for a writ of habeas corpus. The District Court issued an order to show cause, gave appellant a full hearing on the merits, at which said hearing Winhoven was present and testified, as well as did other witnesses. Winhoven was tendered the assistance of counsel but refused such aid. The District Court decided that Winhoven's contention that he had been denied the effective assistance of counsel at his trial and conviction of the charge of robbery of a postal clerk, the sentence for which he was then serving, was not true, and dismissed the proceedings. Ample findings were made and filed. Winhoven appealed to this court from the order dismissing the proceedings. We affirmed. Winhoven v. Swope, 195 F.2d 181. Winhoven did not petition for certiorari.


The same contentions about denial of the effective assistance of counsel presented in the habeas corpus proceedings are the bases for the motion under section 2255, Title 28, U.S.C.A., involved in the present appeal.


Under the circumstances the action of the District Court in refusing to entertain the application of July 9, 1954, was correct and its order is affirmed.