Stephen Robley Evans, Appellant, v. John Mitchell, Attorney General of the United States, Appellee, 458 F.2d 993 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 458 F.2d 993 (9th Cir. 1972) April 6, 1972. Rehearing Denied June 2, 1972

Terry J. Amdur (argued), Marina Del Rey, Cal., for appellant.

Jan Lawrence Handzlik, Asst. U. S. Atty. (argued), Darrell W. MacIntyre, Eric A. Nobles, Asst. U. S. Attys., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and MERRILL, Circuit Judges, and MURPHY, District Judge.* 

BARNES, Circuit Judge:

The issues presented on this appeal should have been presented on the direct appeal from the judgment of conviction. See United States v. Evans, 425 F.2d 302 (9th Cir. 1970), petition for rehearing denied January 5, 1971, cert. den. 402 U.S. 987, 91 S. Ct. 1648, 29 L. Ed. 2d 153.

"Section 2255 cannot take the place of an original appeal. More properly stated, Sec. 2255 may not be invoked to relitigate questions which were or should have been raised on a direct appeal from the judgment of conviction." United States v. Marchese, 341 F.2d 782, 789 (9th Cir. 1965), cert. den. 382 U.S. 817, 86 S. Ct. 41, 15 L. Ed. 2d 64.

See also Hammond v. United States, 408 F.2d 481 (9th Cir. 1969), and United States v. Rocha, 458 F.2d 441 (9th Cir., decided March 27, 1972).



Honorable Thomas F. Murphy, Senior United States District Judge, Southern District of New York, sitting by designation