Dukes v. United States
| Decision Date | 09 April 1969 |
| Docket Number | No. 22229.,22229. |
| Citation | 407 F.2d 863 |
| Parties | Bill Harvey DUKES, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bill Harvey Dukes, pro se.
Wm. M. Byrne, Jr., U. S. Atty., Robert L. Brosio, Theodore E. Orliss, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before CHAMBERS and ELY, Circuit Judges, and von der HEYDT,* District Judge.
Dukes is serving a 25 year sentence for armed robbery of a national bank in Los Angeles. There seems to have been at least one shot fired into the bank's ceiling. Too late, he attempted an appeal. And, so he had none. Now he seeks under 28 U.S.C. § 2255 to review much of his trial. The district court ruled against him on this civil proceeding. Appeal is taken now, asserting errors in the original trial and in the § 2255 process. We affirm.
Appellant is greatly disturbed that a confederate received a six year sentence for his part and he, Dukes, received a 25 year sentence. The sentences were imposed by different judges of the same court. We simply are not permitted to correct disparity in sentences. See United States v. Baysden, 4 Cir., 326 F.2d 629. But we should not leave the impression that we imply the sentences considered together are unfair because they are different. There might be many reasons why the difference was justified. But it is simply not our business to review sentences.
Dukes contends he was denied due process because he was not permitted a direct appeal in forma pauperis. His effort came too late. See the denial of certiorari order recorded as Dukes v. United States, 386 U.S. 946, 87 S.Ct. 982, 17 L.Ed.2d 876.
In this § 2255 proceeding, Dukes sought to disqualify Judge Charles H. Carr, his original trial judge. Judge Carr held the contents of Dukes' affidavit for disqualification insufficient, not reaching the question of the truth of the allegations of bias and prejudice. If the allegations were sufficient on their face, another judge would be required to test their veracity. We agree that the affidavit of bias was insufficient. See Grimes v. United States, 9 Cir., 396 F.2d 331.
There is also a thrust to the contentions of Dukes that there is per se something wrong with the trial judge in a criminal case hearing a subsequent § 2255 proceeding. This is not the rule in the Ninth Circuit. King v. United States, 402 F.2d 58. A new judge is now always required in the First Circuit....
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Demjanjuk v. Petrovsky, C85-1226.
...denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1970); Lucero v. United States, 425 F.2d 172, 173 (9th Cir.1970); Dukes v. United States, 407 F.2d 863 (9th Cir.1969); Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968); Mirra v. United States, 379 F.2d 782 (2nd Cir.1967)......
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Lucero v. United States, 96-70.
...supported by Halliday v. United States, 380 F.2d 270 (1st Cir. 1967). But the rule is otherwise in other circuits. See Dukes v. United States, 407 F.2d 863 (9th Cir. 1969); King v. United States, 402 F.2d 58 (9th Cir. 1968); Battaglia v. United States, 390 F.2d 256 (9th Cir. 1968); Briscoe ......
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Wagner v. United States, 22112.
...first § 2255 motion. The rule in this circuit is to the contrary. King v. United States, 9 Cir., 1968, 402 F.2d 58, 60; Dukes v. United States, 9 Cir., 1969, 407 F.2d 863. The order appealed from is reversed; the matter is remanded to the trial court for further proceedings consistent with ......
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Henry v. State, 21259
... ... 1964), cert. den. 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965); Dukes v. U. S., 407 F.2d 863 (9th Cir. 1969), cert. den. 396 U.S. 897, 90 S.Ct. 193, 24 L.Ed.2d 174 ... ...