Keith Allan Castle, Petitioner-appellant, v. United States of America, Respondent-appellee, 985 F.2d 559 (6th Cir. 1993)

Before DAVID A. NELSON and BATCHELDER, Circuit Judges, and BECKWITH, 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Keith Allan Castle pleaded guilty to one count of making a false statement in the acquisition of a firearm in violation of 18 U.S.C. § 922(a) (6) and received a five year period of incarceration. The conviction was affirmed without a published opinion on direct appeal. Castle thereafter filed a series of motions to vacate, the latest motion culminating in the present appeal. The district court denied the relief sought and this appeal followed. The parties have briefed the issues; Castle is proceeding without counsel. In addition, Castle moves for the appointment of appellate counsel.

Upon consideration, we find no error in the district court's decision. Castle contended that the challenged sentence should be set aside because he was on drugs when he entered the underlying guilty plea and lacked the requisite capacity. The district court held that petitioner was attempting to relitigate matters that had been determined on prior motions and denied the motion as successive. The record contains at least one of Castle's prior § 2255 motions in which he unsuccessfully challenged his capacity to enter the underlying guilty plea. Castle did not accompany his latest motion (or any other) with material tending to show his factual innocence of the crime to which he pleaded guilty. Castle's motion was properly denied as successive. Rule 9(b), Rules Governing § 2255 Proceedings; Sanders v. United States, 373 U.S. 1, 15 (1963).

Accordingly, the motion for counsel is denied and the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.