Opinion
No. 14967.
November 27, 1962.
Iley Williams, in pro. per.
Eugene D. Smith, (Court Appointed), Cincinnati, Ohio, for appellant.
Joseph P. Kinneary, U.S. Atty., Arnold Morelli, Asst. U.S. Atty., Cincinnati, Ohio, on brief, for appellee.
Before McALLISTER and WEICK, Circuit Judges, and BOYD, District Judge.
ORDER.
This cause came on to be heard on briefs of the Government and the appellant pro se, who styles his prayer for relief as a "Motion to Vacate Judgment and Sentence Pursuant to Title 28 US CA, Section 2255", appellant having been convicted of a violation of the narcotics laws of the United States, Title 26 U.S.C.A. § 4705(a). Although entitled as above, the relief sought here is in essence a reversal of the District Court of the Southern District of Ohio, in its denial of appellant's motion for a new trial on grounds of newly discovered evidence under Rule 33, Federal Rules of Criminal Procedure, Title 18 USCA; see Zachary v. United States, 275 F.2d 793, at 796 (C.A.6) 1960, cert. denied, 364 U.S. 816, 81 S.Ct. 46, 5 L.Ed.2d 47;
AND IT APPEARING that the motion was seasonably filed within two years of final appellate judgment, Williams v. United States, 272 F.2d 822 (C.A.6) 1959, cert. denied, 364 U.S. 836, 81 S.Ct. 72, 5 L.Ed.2d 61; Oct. 10, 1960, see Harrison v. United States, 5 Cir., 191 F.2d 874;
AND IT FURTHER APPEARING that there is no showing of abuse of discretion by the District Court in overruling the aforesaid motion for a new trial, United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Petro v. United States (Sanzo v. United States), 210 F.2d 49, at 53 (C.A.6) 1954, cert. denied 347 U.S. 974, 74 S.Ct. 785, 98 L.Ed. 1114; Balestreri v. United States, 224 F.2d 915 (C.A.9) 1955; Harrison v. United States, supra; United States v. On Lee, 201 F.2d 722 (C.A.2) 1953, cert. denied, 345 U.S. 936, 73 S.Ct. 798, 97 L.Ed.2d 1364;
AND IT FURTHER appearing that other alleged errors relied upon by the appellant are either not cognizable in a Section 2255 proceeding or were expressly adjudicated in the affirmance of appellant's conviction on previous appeal before this court, Williams v. United States, supra;
IT IS THEREFORE ORDERED AND ADJUDGED that the motion to vacate judgment and sentence be denied and that the order of the District Court denying the motion for a new trial be affirmed.