Winhoven v. United States
| Decision Date | 31 December 1952 |
| Docket Number | No. 13483.,13483. |
| Parties | WINHOVEN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Willard A. Winhoven, in pro. per.
Chauncey Tramutolo, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.
This is an appeal from an order of the district court denying Winhoven's motion under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to vacate a judgment adverse to him in a 28 U.S.C. § 2255 proceeding. The grounds of the motion to vacate are that the 2255 judgment against him is "void" because Winhoven in the hearing of his motion was denied procedural due process of law in violation of the Fifth Amendment by
(a) Failing to act upon his motion to be present at the hearing on his motion to vacate judgment.
(b) Failing to act upon his writ of habeas corpus requiring his presence at such hearing on motion to vacate judgment.
(c) Failing to act upon his motion for issuance of subpoenae to witnesses those names and addresses were therein stated.
Rule 60(b)1 provides, inter alia, as a fourth and separate ground for setting aside a judgment that it is "void."
The judgment of the district court on this 60(b) motion ignores this contention that the judgment sought to be set aside is void. The language is:
We hold the court erred in failing to consider Winhoven's contention that the 2255 judgment is void. If void for violation of the due process clause of the Fifth Amendment by denying him participancy in the hearing of his motion, he may move to set it aside without appealing therefrom. Escoe v. Zerbst, 295 U.S. 490, 494, 55 S.Ct. 818, 79 L.Ed. 1566; Sunal v. Large, 332 U.S. 174, 182, 67 S.Ct. 1588, 91 L.Ed. 1982.
We do not think the error is harmless. The original motion in that proceeding alleges Winhoven's request to the court in his criminal trial that he be allowed to conduct his own case and for that purpose that he be relieved of his counsel was denied. The United States answered and denied this allegation, stating "that it is not true that the Court at any time during the proceedings forced defendant-petitioner to be represented by a counsel whose assistance was unwanted or undesired by the defendant or whose assistance was ineffective or divided or whose assistance was trammeled or burdened by simultaneous representation of his co-defendant."
On this issue so joined Winhoven's 60(b) motion alleges that the Court, without notice to him, but with notice to the United States Attorney,...
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