Opinion
No. 28069 Summary Calendar.
January 6, 1970.
Coleman Harper Bell in pro. per.
H.M. Ray, U.S. Atty., Norman L. Gillespie, Asst. U.S. Atty., Oxford, Miss., for respondent-appellee.
Before THORNBERRY, CARSWELL and CLARK, Circuit Judges.
This appeal is taken from an order of the district court denying the motion of a federal convict to vacate sentence, pursuant to 28 U.S.C. § 2255. We affirm.
Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5th Cir. 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Company, 5th Cir. 1969, 417 F.2d 526, Part I.
In this, his second motion to vacate sentence under 28 U.S.C. § 2255, appellant attempts to gain relief by contending that he was denied assistance of counsel at sentencing.
After an evidentiary hearing held on appellant's first § 2255 motion, the district court found that appellant was not denied the right to counsel, but that he knowingly and voluntarily waived assistance of counsel after being fully advised of his rights in that regard. Bell v. United States, N.D.Miss. 1966, 265 F. Supp. 311. This Court affirmed. Bell v. United States, 5th Cir. 1967, 375 F.2d 763; cert. denied 389 U.S. 881, 88 S.Ct. 121, 19 L.Ed.2d 175.
This same contention having been previously presented and considered on a similar motion, the district court was not in error in denying relief based upon the record and without a hearing. Sanders v. United States, 1963, 373 U.S. 1, 83 S. Ct. 1068, 10 L.Ed.2d 148; Williams v. United States, 5th Cir. 1962, 309 F.2d 890, cert. denied 373 U.S. 940, 83 S.Ct. 1545, 10 L.Ed.2d 694; Wells v. United States, 5th Cir. 1964, 210 F.2d 112. The judgment below is affirmed.
Affirmed.