Patrick Millard Eddy, Appellant, v. United States of America, Appellee, 268 F.2d 784 (9th Cir. 1959)

It is directed that the district court vacate its order of November 21, 1958, in its cause No. 19,743, and consider anew the question of whether a hearing should be held on appellant's motion or petition filed in the district court on the date of the order.

Ex parte, the district court decided that no grounds for relief were stated and therefore denied all relief, directing the clerk not to calendar the matter for hearing.

On appeal here the government in its regular brief stoutly maintained that the district court's order was correct and said it would be "absurd for the trial court to send for the petitioner to have him take the stand * * *"

After the appeal was submitted on May 4 to this court, the district attorney filed herein on May 8 a "Consent and Request to Remand" for "the purpose of conducting a hearing to determine the factual issues raised in appellant's motion or petition pursuant to 28 U.S.C. § 2255." Further, the district attorney said " [t]his consent to remand is pursuant to the suggestion and direction of the office of the attorney general of the United States." No authority or reason is given by the district attorney for this position. The position may or may not be correct. This court does not decide or reach the question.

Under the circumstances, the trial court should first have the opportunity to have the attorney general's views on a right to a hearing which may be submitted to it by brief. Then if the district court decides a hearing should be held, it can send for the petitioner who is in Leavenworth.

Remanded.