Unpublished Dispositionmichael Charles Ward, Petitioner-appellant, v. United States of America, Respondent-appellee, 928 F.2d 406 (6th Cir. 1991)

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).

Michael Charles Ward moves for an expedited ruling upon his motions to proceed in forma pauperis and for the appointment of counsel on appeal from the denial of his motion to vacate sentence filed under 28 U.S.C. § 2255. Ward alleged that his 1979 conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) is invalid because: (1) the district court instructed the jury that cocaine is a controlled substance as a matter of law, and (2) insufficient evidence that petitioner possessed an illegal form of cocaine was adduced at trial. The district court denied petitioner's motion as successive. Upon consideration, we conclude that the denial was proper.

We will affirm the judgment of the district court for the reasons stated in its opinion and order filed on October 16, 1990. Petitioner's claims have been rejected previously on the merits by the district court and by this court. Ward v. United States, No. 84-1252 (W.D. Mich. July 29, 1987) (unpublished), aff'd, 848 F.2d 195 (6th Cir.) (table), cert. denied, 488 U.S. 959 (1988). Petitioner's motion is therefore successive. See Sanders v. United States, 373 U.S. 1, 15 (1963). Petitioner has not made a colorable showing of factual innocence requiring a redetermination of the merits. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986).

Accordingly, petitioner's motions to expedite and to proceed in forma pauperis are granted, the motion for appointment of counsel is denied, and the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.