Wagner v. United States, 20924.

• Decision Date: 06 February 1967
• Docket Number: No. 20924.,20924.
• Citation: 374 F.2d 86
• Parties: Raymond John WAGNER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

374 F.2d 86 (1967)

Raymond John WAGNER, Appellant, v. UNITED STATES of America, Appellee.

No. 20924.

United States Court of Appeals Ninth Circuit.

February 6, 1967.

Raymond John Wagner, in pro. per.

Manuel L. Real, U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief Crim. Div., Ronald S. Morrow, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and ELY, Circuit Judges, and PECKHAM, District Judge.

PER CURIAM:

This appeal is from the denial, without a hearing, of relief sought under 28 U.S.C. § 2255.

In a jury trial, appellant had been convicted of armed robbery of a postmaster. 18 U.S.C. § 2114. Sentenced to a twenty-five year term of confinement, he appealed the judgment of conviction. The judgment was affirmed by our court. Wagner v. United States, 264 F.2d 524 (9th Cir. 1959).

The application which is the subject of this review was filed on October 25, 1965. On November 2, 1965, the District Court entered an order denying relief. In making this order the District Court was clearly correct. As grounds for his motion, appellant alleged generally, (1) that evidence produced in his original trial was insufficient to identify him as a participant in the offense, (2) that there was error in the admission of certain evidence, and (3) that there was error in the court's failure to require production of certain evidence. These same contentions had been presented by appellant and rejected by our court on the direct appeal from the judgment of conviction. Wagner v. United States, supra.

Following the denial of the motion on November 2, 1965, appellant thereafter, on December 20, 1965, filed that which is denominated "Motion for Reconsideration of Order Dismissing Petition to Vacate Pursuant to Title 28, U.S.C., Section 2255." In this motion appellant alleged, for the first time, that in the course of the original proceedings there was "illegal suppression of evidence favorable to his defense by the government in violation of the Fifth Amendment to the Constitution of the United States." The District Court construed this allegation, contrary to appellant's present contention as to its intent, as a reassertion of the same allegation made in the original motion as to lack of evidence to establish identification. The Motion for Reconsideration was denied on December 20, 1965.

The appellee urges that appellant's Notice of Appeal was not filed until January 10, 1966, more than sixty days after the denial of the principal motion, and that, hence, we are without jurisdiction. Fed.R.Civ.P. 73(a). Appellant contends that his Notice of Appeal was mailed to the office of the Clerk of the District Court on December 27, 1965, and an affidavit of a prison...