Opinion
No. 7330.
July 19, 1963.
Frank C. McKibben, Denver, Colo., for appellant.
Jack R. Parr, Asst. U.S. Atty. (B. Andrew Potter, U.S. Atty., was with him on the brief), for appellee.
Before PICKETT, BREITENSTEIN, and HILL, Circuit Judges.
Marshall has appealed for the second time from the denial of relief under 28 U.S.C. § 2255. He again attacks the validity of the sentence imposed but this was determined adversely to him on his prior appeal. Marshall v. United States, 10 Cir., 299 F.2d 141, certiorari denied 370 U.S. 958, 82 S.Ct. 1606, 8 L.Ed.2d 824. Additionally he asserts that he was unconstitutionally denied counsel at the time of his first arraignment.
The record shows that at arraignment the court advised Marshall of his right to counsel and Marshall replied that he was thinking about hiring a lawyer whom he named. The court then inquired of Marshall whether he wanted to proceed or wait. Marshall replied: "Well, just as well plead not guilty at the present." Later a lawyer was appointed and Marshall changed his plea to guilty. In the circumstances no prejudice appears. Cf. Crooker v. California, 357 U.S. 433, 439, 440, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Latham v. Crouse, 10 Cir., 320 F.2d 120.
In the brief of counsel appointed by this court to represent Marshall on this appeal the claim is made that Marshall was not represented by effective counsel at the time of his change of plea and sentence. This contention was not raised by the motion under § 2255 and was not considered by the trial court. It may not now be raised for the first time on appeal. Way v. United States, 10 Cir., 276 F.2d 912, 913; Richardson v. United States, 10 Cir., 199 F.2d 333, 335.
Affirmed.