Unpublished Dispositionjohn Wesley Duffel, Petitioner-appellant, v. United States of America, Respondent-appellee, 869 F.2d 1489 (6th Cir. 1989)

Before KENNEDY and NATHANIEL R. JONES, Circuit Judges, and EUGENE E. SILER, Jr., District Judge.^* 

ORDER

John Wesley Duffel requests appointment of counsel on this appeal from the district court's denial of his motion to vacate his sentence filed under 28 U.S.C. § 2255.

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Duffel entered a guilty plea in 1962 to two charges of burglarizing United States Post Offices; he received concurrent three year sentences. In 1980, he was convicted in Tennessee of first degree burglary and habitual criminal status and received a life sentence. The 1962 federal convictions formed part of the basis for his habitual criminal conviction. Duffel filed a motion to vacate his sentence in 1980, alleging three grounds, including a claim that he should have been tried as a juvenile because he was seventeen at the time the Post Office burglaries were committed. That motion was denied on the merits by the district court, and on appeal by this court. In this second motion, petitioner raised the same ground, adding only an allegation that the government had deliberately delayed bringing charges against him until he had reached the age of majority. The district court determined that the motion was successive, and denied relief.

Upon consideration, we conclude that the district court properly denied this motion. A successive motion which fails to allege new or different grounds for relief may be denied if the prior determination was on the merits and the ends of justice would not be served by a reconsideration. Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986); Sanders v. United States, 373 U.S. 1, 15-17 (1963). A motion based on the same ground will be found successive although it includes different factual allegations. Lonberger v. Marshall, 808 F.2d 1169, 1173 (6th Cir.), cert. denied, 107 S. Ct. 2195 (1987). Review of this record indicates that the ends of justice would not be served by reconsidering this claim.