Opinion
No. 72-2214.
November 20, 1972.
Richard G. Sherman, of Sherman Sturman, Beverly Hills, Cal., for petitioner-appellant.
William C. Smitherman, U.S. Atty., James D. Whitney, David S. Hoffman, Asst. U.S. Attys., Tucson, Ariz., for respondent-appellee.
Appeal from the United States District Court for the District of Arizona.
Before HAMLEY, DUNIWAY and CHOY, Circuit Judges.
Charles Battaglia, a federal prisoner, appeals a district court order denying his motion for post-conviction relief pursuant to 28 U.S.C. § 2255. We affirm.
In 1967 he was convicted of violating 19 U.S.C. § 1951 (The Hobbs Act). He alleges that during the trial he was under the influence of drugs and therefore was incompetent to assist in his own defense and to confront his accusers. He also alleges that failure by his two attorneys to raise this issue at trial, thus preserving it in the record on appeal, constituted ineffective assistance of counsel.
The incompetency claim was previously before this court on a § 2255 motion and adjudicated adversely to Battaglia. Battaglia v. United States, 428 F.2d 957 (9th Cir. 1970). The present § 2255 petition does not allege any new facts which would call for a hearing. Where a second § 2255 application is shown, on the basis of the application, files, and records clearly to be without merit, as here, the district court properly denied the application without a hearing. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
The claim of ineffective assistance of counsel is frivolous. The record indicates that the two attorneys were able and experienced and were highly commended by the trial judge at the close of trial. The trial judge was aware of Battaglia's physical condition, and was constantly observing him. If the issue of Battaglia's incompetency had any merit, it would have been raised by counsel, or the court would have stopped the progress of the trial.
Affirmed.