Thomas Edison Irwin, Appellant, v. United States of America, Appellee, 414 F.2d 606 (9th Cir. 1969)

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U.S. Court of Appeals for the Ninth Circuit - 414 F.2d 606 (9th Cir. 1969) July 29, 1969

Thomas O. Gillis, San Jose, Cal., for appellant.

Edward E. Davis, U.S.Atty., Morton Sitver, Asst. U.S. Atty., Richard K. Burke, U.S. Atty., Phoenix, Ariz., for appellee.

Before CHAMBERS, MERRILL and ELY, Circuit Judges.


Irwin has attacked his Dyer Act conviction by motion under 28 U.S.C. § 2255. He was brought from jail to the hearing in the district court, where his contentions were rejected.

Counsel appointed for the appeal argues that it was an abuse of discretion not to give Irwin a lawyer for the hearing in this civil proceeding. We do not agree. Although Irwin tended to present his case in circumlocution, neither of the issues of fact was so complex that a lawyer was clearly essential to present them.

The medical officer who was supposed to have given Irwin narcotic pills before trial was called, and he flatly denied the allegation. Irwin's appointed trial counsel, alleged to be incompetent in not calling certain unnamed witnesses, also testified. In the end the district court found Irwin's contentions empty.

Litigants in good faith and taxpayers may feel abused, but there was no abuse by the court. Counsel on appeal has also done the best for Irwin that could be.

The standards of due process were well met.