Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Raymond Wyatt Smith, Defendant-appellant, 815 F.2d 81 (6th Cir. 1987)

ORDER

The defendant moves for counsel, a transcript, and bail pending appeal from the district court's judgment denying his motion to vacate. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the defendant's informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The defendant was convicted by a jury in the district court for the Southern District of Ohio of five counts of interstate transportation of forged securities. He received ten year sentences on each count, to run concurrently. On direct appeal, his convictions were affirmed.

The defendant filed a prior motion to vacate alleging that the indictment was defective. The district court denied that motion, holding that the indictment was not so defective on its face that it did not charge an offense. The defendant then filed the present motion to vacate, again attacking the indictment for a different reason. The district court entered an order denying this motion as successive. We agree with the district court.

The general rule is that a defendant cannot attack an indictment in a Sec. 2255 proceeding unless the indictment is so defective on its face that it does not charge an offense under any reasonable construction. Eisner v. United States, 351 F.2d 55, 56 (6th Cir. 1965), disapproved on other grounds, Kaufman v. United States, 394 U.S. 217, 220 (1969); accord, Walker v. United States, 439 F.2d 1114, 1115 (6th Cir. 1971) (per curiam) . Because the initial attack upon the indictment failed based on this general rule, the second attack upon the indictment must also fail for the same reason. Therefore, the district court was correct to dismiss the motion as successive. Rule 9(b), Rules Governing Section 2255 Cases.

The motions for counsel, a transcript, and bail are denied. The judgment of the district court is affirmed under Rule 9(d) (3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.