Opinion
No. 11514.
April 4, 1952.
John H. Ranz, Cincinnati, Ohio (appointed by the court), for appellant.
Otto T. Ault, Knoxville, Tenn., for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
In an appeal pending in the above cause, the United States Attorney for the Eastern District of Tennessee moves the court to remand the case to the district court for appropriate proceedings. He recites that the appellant had filed in the district court a motion to set aside a sentence there imposed but that upon a hearing on said motion the appellant was not present and did not have the effective service of counsel; that the court denied the motion upon consideration of the entire record but without notice to the defendant. The District Attorney is of the view that the case squarely is within the holding of the Supreme Court in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263.
While the appellant contests the motion, it is our view that the decision in the Hayman case compels its granting, and that here, as there, a new hearing can be afforded under the procedure established in 28 U.S.C. § 2255.
Wherefore, it becomes our duty to reverse the order of the district court and to remand the case for a new hearing under the provisions of § 2255 and in accord with the procedure established by the cited case.
It is so ordered.