Frank R. Del Piano v. United States

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question for decision is whether a prisoner is entitled to a de novo sentencing proceeding before a judge entertaining a motion pursuant to 28 U.S.C. § 2255, 1 under circumstances in which the original sentencing judge has died and the petitioner has established that his sentence was imposed in violation of the rule of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Tucker held that prior convictions obtained without the assistance of defense counsel as mandated by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9…