Floyd Clayton Forsberg, Petitioner-appellant, v. United States of America, Respondent-appellee, 469 F.2d 1083 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 469 F.2d 1083 (9th Cir. 1972) Nov. 24, 1972

Sidney I. Lezak, U. S. Atty., Michael L. Morehouse, Asst. U. S. Atty., Portland, Ore., for respondent-appellee.

Before MERRILL, CARTER and WRIGHT, Circuit Judges.


This is an appeal by a federal prisoner from the denial of a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Appellant claims that his plea of guilty was void because a requested and ordered psychiatric examination was never held. He also contends that he was not adequately admonished as to the consequences of his plea as required by F.R.Cr.P. 11.

His contentions are without merit.

The petitioner filed an earlier 2255 motion which was denied upon the merits. The instant one was denied as a mere duplication of the first. Petitioner in several letters written to the District Court Judge admitted that the claimed deprivation of the psychiatric examination was merely a device to enable the judge to vacate petitioner's original sentence and impose a lower one based on prison rehabilitation. The District Court properly refused to utilize 28 U.S.C. § 2255 for such a purpose. United States v. Marchese, 341 F.2d 782, 788 (9th Cir. 1965).

We agree that the first motion was frivolous as was that portion of the second motion which was repetition.

One claim newly asserted in the second petition-failure to comply with F.R.Cr.P. 11 in accepting the guilty plea-is without merit. The transcript of the proceeding shows full compliance. Williams v. United States, 466 F.2d 672 (9th Cir. 1972).

The judgment is affirmed.