Williams v. United States

• Decision Date: 31 August 1962
• Docket Number: No. 17794.,17794.
• Citation: 307 F.2d 366
• Parties: Joseph Kenneth WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

307 F.2d 366 (1962)

Joseph Kenneth WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 17794.

United States Court of Appeals Ninth Circuit.

August 31, 1962.

Robert J. McNichols, Spokane, Wash., for appellant.

Frank R. Freeman, U. S. Atty., and Patrick H. Shelledy, Asst. U. S. Atty., Spokane, Wash., for appellee.

Before BARNES, HAMLEY and HAMLIN, Circuit Judges.

HAMLEY, Circuit Judge.

Joseph Kenneth Williams appeals from an order denying a motion, made under 28 U.S.C. § 2255, to set aside concurrent sentences imposed by a court of the United States. The sentences were imposed on April 28, 1960, following Williams' conviction, after a jury trial, on charges growing out of a bank robbery at Fairchild Air Force Base, near Spokane, Washington, on December 3, 1959. Two of the concurrent sentences were for twenty years and the third was for five years.

Appellant specifies as error the failure of the district court to grant him a hearing before disposing of his motion.

A district court hearing on any such motion must be held "(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *" 28 U.S. C. § 2255. Tweedy v. United States, 9 Cir., 276 F.2d 649, 652.

The district court held, in effect, that such a conclusive showing was made in this case because the questions which Williams sought to raise could not be determined in a section 2255 proceeding.

We agree. The sole basis of the motion was that, by reason of an unlawful search of his apartment, articles were then or thereafter seized which were either introduced in evidence against him at the trial, or were made use of by law enforcement officers in obtaining other evidence which was introduced against him.

Questions concerning the admissibility of evidence obtained directly or indirectly as a result of an unlawful search can be reviewed on an appeal from a judgment of conviction, but cannot be dealt with in a section 2255 proceeding. Eberhart v. United States, 9 Cir., 262 F. 2d 421.

Williams did institute an appeal from the judgment of conviction, and sentences, entered on April 28, 1960. But, although Williams was at all times represented by counsel, the notice of appeal was not filed in the district court until May 26, 1960. The United States thereafter moved in this court for dismissal of the appeal (Misc. No. 1077), on the ground that the notice of appeal was not filed within ten days after entry of the judgment of conviction, as required by Rule 37(a) (2), Federal Rules of Criminal Procedure, 18 U.S.C.A.

After this motion was calendared for argument, Carl Maxey, one of Williams' then counsel, wrote to the clerk of this court, stating:

"Please be advised that I will not attend the arguments in the above-entitled matter and, for the record, I have been instructed to not take any steps to effectuate an appeal in this matter."

On October 10, 1960, another panel of this court entered an order dismissing the appeal.

It is contended for appellant in the instant proceeding that the district court should have held a hearing to enable him to present evidence excusatory of his failure to file a timely notice of appeal. On the basis of the evidence which would have been presented, it is urged, the trial court should have set aside the judgment of conviction and sentences, granted appellant's motion that a transcript of the preliminary and trial proceedings be supplied at government expense, and...