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Deitle v. United States

April 27, 1962

ROBERT EARL DEITLE, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.



Author: Hastings

Before HASTINGS, Chief Judge, and SCHNACKENBERG and KILEY, Circuit Judges.

HASTINGS, Chief Judge.

This is an appeal from an order of the United States District Court for the Western District of Wisconsin, Honorable Patrick T. Stone, presiding. Such order denied defendant's motion of June 5, 1959, filed pursuant to 28 U.S.C.A. § 2255, to vacate judgments.

The motion challenged the validity of four judgments of conviction entered on pleas of guilty to three informations and one indictment charging defendant with violations of 18 U.S.C.A. § 2314 (causing forged securities to be transported in interstate commerce with unlawful or fraudulent intent).

Petitioner, Robert Earl Deitle (defendant), prosecuted this appeal pro se and was not present in court or represented by counsel at the time fixed for oral argument. He did not request appointment of appellate counsel. We ordered the appeal submitted on the record and briefs of both parties, without oral argument.

The district court first entertained defendant's motion to vacate the judgments in question on June 16, 1959, without requiring defendant to be present. After a hearing in defendant's absence, the motion was denied. On appeal to this court, the order of the district court was affirmed. United States v. Deitle, 7 Cir., 274 F.2d 117 (1960).

The opinion of this court in the first appeal fully sets out the background of this proceeding up to that time. We adopt it by reference and shall not repeat it here.

On June 27, 1960, the Supreme Court in a Per Curiam order granted petitioner's pro se motion for leave to proceed in forma pauperis and granted his petition for writ of certiorari. The Court ordered: "The judgment is vacated and the case is remanded to the District Court for a hearing at which petitioner should be present." Deitle v. United States, 364 U.S. 284, 80 S. Ct. 1622, 4 L. Ed. 2d 1720 (1960).

A certified copy of the order of remandment by the Supreme Court was filed in the district court on July 27, 1960.

On August 24, 1960, the district court entered a written order in this case setting defendant's Section 2255 motion for hearing in such court at Wausau, Wisconsin, on September 13, 1960, at 2:00 o'clock p.m.; appointing Mr. Stuart G. Gullickson, a reputable member of the Wisconsin bar, as counsel to represent defendant at said hearing; and directing the Warden of the United States Penitentiary at Leavenworth, Kansas "to produce said defendant at said place on the 12th day of September, 1960, to permit defendant to confer with his counsel, Stuart G. Gullickson, appointed by this Court."

Certified copies of this order were mailed to defendant and the warden, together with an appropriate writ of habeas corpus. Defendant received his copy of the order on August 27, 1960.

On September 1, 1960, defendant, acting pro se and without advice of his court appointed counsel, filed a written motion (1) protesting setting the hearing at Wausau, Wisconsin and moving that it be held in Madison, Wisconsin where he was originally sentenced; (2) moving the disqualification of Judge Stone on account of alleged bias and prejudice against him; and (3) moving that 22 named witnesses be subpoenaed as witnesses at the hearing and that four of them produce voluminous records of which not one of such witnesses was the legal custodian.

On September 3, 1960, the district court entered a written order denying the motion in toto and filed a memorandum decision in support of its ruling.

We have carefully examined such motion and the ruling thereon and hold that the district court did not abuse its discretion in so ruling. The Western District of Wisconsin is not divided into divisions. Trial may be had in any location in the district where the court is authorized to sit. Wausau, Wisconsin is such an authorized place. The trial court properly noted that many of the alleged acts complained of by defendant occurred either in Wausau ...


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