February 1, 1972. Rehearing Denied March 30, 1972.
Laurence W. Kessenick, of Hassard, Bonnington, Rogers Huber, San Francisco, Cal., for plaintiff-appellant.
Robert L. Meyer, U.S. Atty., Eric A. Nobles, Chief, Crim. Div., Stephen V. Wilson, David P. Curnow, Asst. U.S. Attys., Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before MERRILL, CARTER and HUFSTEDLER, Circuit Judges.
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 case 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.