Allen Ray Johnson, Defendant-appellant, v. United States of America, Plaintiff-appellee.in Re Allen Ray Johnson, Petitioner, 825 F.2d 407 (4th Cir. 1987)

Allen Ray Johnson, an inmate confined at the Federal Correctional Institute in Butner, North Carolina, appeals from the district court order dismissing his motion brought pursuant to 28 U.S.C. § 2255. Johnson made the following allegations in the motion: (1) section 659 of Title 18 does not allow convictions for three thefts where the evidence at trial showed only one interstate shipment of gasoline from Texas to North Carolina the day before the theft; and (2) a conviction under Sec. 659 cannot be sustained when the theft occurred at a carrier serviced facility and the legislative history indicates that Congress made such a theft a federal crime under 18 U.S.C. § 2117. In his informal brief, Johnson further alleged that there was no federal jurisdiction under Sec. 659 because at the time of the theft the gasoline was no longer a part of interstate commerce.

We affirm. The district court properly dismissed the first claim because it was successive, and the second claim because the legislative history does not indicate that Johnson was indicted under the wrong statute. The claim raised in the informal brief also lacks merit because it was decided previously by this Court on Johnson's direct appeal from his conviction, see United States v. Williams, 559 F.2d 1243 (4th Cir. 1977), and cannot be raised in the present appeal. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.), cert. denied, 429 U.S. 863 (1976).

Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument. The petition for mandamus and associated motions are denied.

AFFIRMED.