Unpublished Dispositionmorris Thomas, Petitioner-appellant, v. United States of America, Respondent-appellee, 787 F.2d 593 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 787 F.2d 593 (6th Cir. 1986)



S.D. Ohio


BEFORE: LIVELY, Chief Judge, MERRITT and NELSON, Circuit Judges.

This matter is before the Court upon the appellant's motion to be released on appeal and motion for counsel. The appeal has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record, appellant's motion and informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Morris Thomas appeals the dismissal of his 28 U.S.C. § 2255 petition. The sole issue before this Court is whether the district court abused its discretion in dismissing the petition as a successive petition under 28 U.S.C. § 2255.

The appellant is serving a 104 year sentence pursuant to guilty pleas to kidnapping, 18 U.S.C. § 1201, and motor vehicle theft, 18 U.S.C. § 2312. The guilty pleas took place in 1949, and Thomas has been incarcerated ever since. On April 1, 1949 in Cincinnati, Ohio the appellant and an accomplice abducted a 52 year old woman at gunpoint. They drove to Oldham County, Kentucky with the woman, beat her, and left her bound and naked in a remote field. The appellant was apprehended when he tried to sell the victim's car in Dayton, Ohio.

This is the appellant's sixth motion to vacate his sentence. He argues he was unlawfully induced into pleading guilty and that the trial judge did not ascertain that the plea was knowing and voluntary. Also, he contends the trial judge did not permit him to make a statement before sentencing.

The district court is not required to entertain a Sec. 2255 petition if it asserts issues similar to that brought forth in prior petitions. Moody v. United States, 580 F.2d 238 (6th Cir. 1978); Hill v. United States, 378 F.2d 44 (6th Cir. 1967). The issues set forth in the present Sec. 2255 petition were also asserted in the appellant's motion to vacate filed on February 12, 1954. An extensive hearing was held regarding the appellant's contentions on August 30, 1955. Consequently, the district court did not abuse its discretion in dismissing the appellant's petition.

Accordingly, it is ORDERED that the motion to be released on appeal and motion for counsel be denied. Further, the judgment of the district court is affirmed pursuant to Rule 9(d) (3), Rules of the Sixth Circuit.