Unpublished Dispositionwilliam Alton Johnson, Petitioner-appellant, v. United States of America, Respondent-appellee, 860 F.2d 1079 (6th Cir. 1988)

Before MERRITT and RYAN, Circuit Judges and JOHN W. POTTER, District Judge.^* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

William Alton Johnson appeals the dismissal of his second motion to vacate sentence filed under 28 U.S.C. § 2255. Johnson alleged in both motions that his plea of guilty to a reduced charge of voluntary manslaughter, entered pursuant to a plea agreement, was involuntary. The district court denied Johnson's first motion on the merits and no appeal was taken. This second motion was dismissed as an attempt "to relitigate matters which were resolved upon his voluntary plea...."

Upon consideration, we conclude that the motion was properly dismissed because it is successive. See Rule 9(b), Rules Governing Section 2255 Proceedings. Johnson relies upon the same "ground" for relief that was previously rejected on the merits by the district court, i.e., that his plea was involuntary. See Sanders v. United States, 373 U.S. 1, 16 (1963). The motion is successive even though the factual basis for the "ground" is not identical. See Lonberger v. Marshall, 808 F.2d 1169, 1172-74 (6th Cir.), cert. denied, 107 S. Ct. 2195 (1987). Further, petitioner failed to make a "colorable showing of factual innocence." Kuhlmann v. Wilson, 477 U.S. 436, 454-55 (1986).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.