BERLIN ACEY ODOM, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE
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The court held that a prior conviction, affirmed on appeal and thus final, is not subject to a new trial based on a subsequent change in the law regarding insanity defenses.
Appellant Odom sought relief under 28 U.S.C. § 2255, challenging his conviction. His conviction had previously been affirmed by this court. Odom raise…
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PER CURIAM:
This is an appeal from an order denying Odom’s application for relief under § 2255, Title 28, United States Code. The conviction under which Odom is serving time was affirmed by the same panel of this court now sitting on the case. United States v. Odom (9 Cir. 1970) 423 F. 2d 875.
Odom raises three questions on appeal: (1) Should the trial judge have disqualified himself from presiding over the 2255 hearing? (2) Did Odom establish he was mentally incompetent to waive counsel at trial? (3) Does Wade v. United States (9 Cir. 1970) 426 F. 2d 64 require a new trial in this case? We affirm.
This circuit has held that the trial or sentencing judge is not disqualified from hearing and deciding a motion pursuant to 28 U.S.C., § 2255. Dukes v. United States (9 Cir. 1969) 407 F. 2d 863, cert. denied, 396 U.S. 897, 90 S.Ct. 193, 24 L.Ed.2d 174; King v. United States (9 Cir. 1968) 402 F. 2d 58.
The trial court held a hearing, took evidence on the mental competency issue and found against Odom. His findings are not clearly erroneous.
The only substantial issue posed in the present appeal involves the limited retroactivity of Wade v. United States (9 Cir. 1970) 426 F. 2d 64. That ease established new law for the circuit on insanity. It was decided on March 30, 1970 and held that the decision applied to “convictions [which] have not become final as of the date of this decision.”
In United States v. Odom, supra, the opinion was filed on March 24, 1969 and the re-hearing denied on April 21, 1970. The decision approved the use of instructions to the jury on insanity, in use prior to the Wade decision. At first blush it might seem that Wade, supra, controls the present case. However, rightfully or wrongfully, this court decided the Odom case and the judgment became final.
The law in this circuit is clear that when a matter has been decided adversely on appeal from a conviction, it cannot be litigated again on a 2255 motion. Stein v. United States (9 Cir. 1968) 390 F. 2d 625; Fiano v. United States (9 Cir. 1961) 291 F. 2d 113, cert. denied, 368 U.S. 943, 82 S.Ct. 380, 7 L.Ed.2d 340. The decision in United States v. Odom, supra, is the law of the case.
Judgment affirmed.
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Citator
Cited By
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Davis v. United States, 417 U.S. 333 (U.S. 1974)
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Page v. United States, 462 F.2d 932 (3d Cir. 1972)
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United States v. Davis, 472 F.2d 596 (9th Cir. 1972)
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wade v. United States, 426 F.2d 64 (9th Cir. 1970)
- Fiano v. United States, 291 F.2d 113 (9th Cir. 1961)
- Stein v. United States, 390 F.2d 625 (9th Cir. 1968)
- United States v. Berlin Acey Odom, 423 F.2d 875 (9th Cir. 1970)
- McARTHUR v. Clark Clifford, 402 F.2d 58 (4th Cir. 1968)
- Fiano v. United States, 368 U.S. 943 (U.S. 1961)
- Dukes v. United States, 407 F.2d 863 (9th Cir. 1969)
- Duval v. United States, 396 U.S. 897 (U.S. 1969)
- Gillingham v. Supreme Court of Tex., 396 U.S. 897 (U.S. 1969)