Birdwell v. United States
| Decision Date | 11 May 1965 |
| Docket Number | No. 19564.,19564. |
| Citation | 345 F.2d 877 |
| Parties | James Harland BIRDWELL, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James H. Birdwell, in pro. per.
Sylvan A. Jeppesen, U. S. Atty., Boise, Idaho, for appellee.
Before HAMLEY and JERTBERG, Circuit Judges, and MATHES, District Judge.
James Harland Birdwell appeals from the denial, in part, of his motion made pursuant to 28 U.S.C. § 2255 (1958) to vacate the sentence imposed upon him.
On September 10, 1962, while represented by counsel, Birdwell pleaded guilty to an information charging a violation of the Dyer Act, 18 U.S.C. § 2312 (1958). On September 18, 1962, he was committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4208(b) (1958), for imprisonment for the maximum period authorized by law (five years), and for a study and report as described in section 4208(b) and (c).
On January 2, 1963, without calling Birdwell and his counsel before the court, an order was entered reciting that the court had received and considered the report of the study which had been ordered, and ordering and adjudging that the sentence of imprisonment theretofore imposed be affirmed as therein modified. The modification was the inclusion of a provision that Birdwell would become eligible for parole "* * * at such time as the board of parole may determine, 18 U.S.C. 4208(a) (2)."
Birdwell filed the section 2255 motion now before us on November 26, 1963. He urged two grounds for relief: (1) it was error to impose final sentence without having him and his counsel present in court, and (2) at the time of his conviction and sentence he was mentally incompetent. Upon initial consideration of this motion the district court, on December 30, 1963, ordered that Birdwell be brought before the court on January 7, 1964.
Birdwell appeared in court with his counsel on that day and a hearing was held. Following this hearing, and on the same day, the court entered an order: (1) rescinding and setting aside the order of January 2, 1963, (2) reciting that the court had received and considered the report of the study which had been ordered on September 18, 1962, and (3) ordering and adjudging that the sentence of imprisonment theretofore imposed be affirmed, with the same modification which had been included in the order of January 2, 1963.
The court took no action concerning Birdwell's allegation that, at the time of his conviction and sentence, he was mentally incompetent. Nor did the court specifically grant or deny Birdwell's section 2255 motion, or mention that motion, in the order of January 7, 1964, Birdwell appeals from the order of January 7, 1964.
The district court proceeded properly in rescinding and setting aside the order of January 2, 1963. That order was an "imposition of sentence" within the meaning of Rule 43, Federal Rules of Criminal Procedure, and should not have been entered in the absence of Birdwell and his counsel. United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L. Ed.2d 224.
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