United States of America, Plaintiff-appellee, v. Mary Ann E. Lewellyn; Thomas L. Lewellyn, Defendants-appellants, 32 F.3d 563 (4th Cir. 1994)

Mary Ann Lewellyn and Thomas L. Lewellyn were found guilty of one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371 (1988), 18 U.S.C.A. Sec. 1341 (West Supp.1993). The Lewellyns each were indicted on six additional counts, which were dismissed in exchange for their separate pleas of guilty to the conspiracy count. Thomas Lewellyn was sentenced to thirty months imprisonment and three years supervised release; Mary Ann Lewellyn was sentenced to thirty-seven months imprisonment and three years supervised release. Previous attempts to set aside their guilty pleas and their sentences have been denied by the district court, and affirmed by this Court. United States v. Lewellyn, No. 93-6187(L) (4th Cir. Oct. 20, 1993) (unpublished); United States v. Lewellyn, No. 91-5530(L) (4th Cir. Jan. 24, 1992) (unpublished).

Presently before the Court is the Lewellyns' motion pursuant to 28 U.S.C. § 2255 (1988), seeking to set aside their convictions and sentences. They brought a previous post-conviction motion seeking dismissal of the indictment and their conviction.¹  This Court affirmed the district court's denial of that motion. United States v. Lewellyn, No.93-6187(L) (4th Cir. Oct. 20, 1993) (unpublished). We find that some of the grounds for relief raised by the Lewellyns in their Sec. 2255 motion presently before this Court were raised in the previous postconviction motion, considered, and denied on the merits by both the district court, and this Court on appeal.²  Accordingly, we find that these claims are successive, and were properly dismissed by the district court on that ground. Sanders v. United States, 373 U.S. 1, 18 (1963); Miller v. Bordenkircher, 764 F.2d 245, 248 (4th Cir. 1985).

The Lewellyns' remaining claims could have been raised in their previous Sec. 2255 motion, but were not.³  There is no cause or prejudice for failing to previously raise these issues apparent in the record. Consequently, we find that the Lewellyns' attempt to raise these issues in this, their second Sec. 2255 motion, is an abuse of the writ. McCleskey v. Zant, 499 U.S. 467 (1991). Finally, we find that the district court did not err in its conclusion that the claims raised by the Lewellyns had no merit.

Accordingly, we affirm the district court's denial of relief pursuant to Sec. 2255. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED