William Banks v. Olin G. Blackwell, Warden, United States Penitentiary, Alcatraz, California

324 F.2d 812

William BANKS, Appellant,
v.
Olin G. BLACKWELL, Warden, United States Penitentiary,
Alcatraz, California, Appellee.

No. 18394.

United States Court of Appeals Ninth Circuit.

Nov. 22, 1963, Rehearing Denied Dec. 13, 1963.

William R. Conklin, San Francisco, Cal., for appellant.

Cecil F. Poole, U.S. Atty., and Jerrold M. Ladar, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before ORR, MERRILL and BROWNING, Circuit Judges.

ORR, Circuit Judge.

1

Appellant was convicted in the District Court for the Southern District of Indiana on June 8, 1953, for a violation of 18 U.S.C.A. 2114. He filed an informal notice of appeal to the Seventh Circuit. In his so called notice of appeal he asked for the appointment of counsel on appeal. The notice of appeal was filed late, but the Seventh Circuit excused the delay and permitted the appeal to stand. Appellant was permitted to proceed in forma pauperis.

2

While the appeal was pending and before the Seventh Circuit acted on his request for the appointment of counsel, appellant voluntarily and of his own motion dismissed the appeal.

3

Appellant's next move was to file a motion under 28 U.S.C.A. 2255, to correct his sentence. This motion was voluntarily withdrawn. Appellant then moved the Seventh Circuit to reinstate his appeal. This motion was denied on the ground that the appeal had been dismissed on the request of appellant.

4

Appellant again soguht relief under Section 2255, alleging that the indictment under which he had been convicted was fatally defective. This motion was denied in the district court, Banks v. United States, 140 F. Supp. 837 (S.D.Ind.1956), and the denial was affirmed by the Seventh Circuit, 239 F.2d 409 (7th Cir.), cert. denied, 353 U.S. 960, 77 S. Ct. 868, 1 L. Ed. 911 (1957).

5

Appellant then filed a third motion under Section 2255, this time claiming that the instructions in his case had been faulty. This motion was denied, and the denial affirmed by the Seventh Circuit, Banks v. United States, 287 F.2d 374 (7th Cir.), cert. denied 366 U.S. 939, 81 S. Ct. 1668, 6 L. Ed. 2d 850 (1961).

6

On November 21, 1962, appellant filed a petition for a writ of habeas corpus in the Northern District of California, he being at that time incarcerated in Alcatraz Prison, situate in the Northern District of California. He alleged that he was deprived of a constitutional right in that he was denied the assistance of counsel on appeal. The district court dismissed the petition. We affirm its order. The record discloses that the contention made by appellant has not been submitted to the sentencing court as required by 28 U.S.C.A. 2255.

7

Appellant contends that Section 2255 does not apply where the alleged denial of constitutional right occurred in the course of proceedings in a court of appeals rather than in a district court. We did not so hold in Williams v. United States, 307 F.2d 366 (9 Cir. 1963), as appellant suggests. There is no such limitation in the language of Section 2255, and we see no reason for reading it into the statute by implication.

8

The order of the District Court of the Northern District of California, Southern Division, dismissing the petition is affirmed.