FLOYD CLAYTON FORSBERG, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
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The court held that a motion to vacate a sentence under 28 U.S.C. § 2255 was properly denied when the claims were either repetitive of a prior motion or lacked merit.
A federal prisoner appealed the denial of his motion to vacate his sentence, claiming his guilty plea was void due to a missed psychiatric examination…
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PER CURIAM:
This is an appeal by a federal prisoner from the denial of a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Appellant claims that his plea of guilty was void because a requested and ordered psychiatric examination was never held. He also contends that he was not adequately admonished as to the consequences of his plea as required by F.R.Cr.P. 11.
His contentions are without merit.
The petitioner filed an earlier 2255 motion which was denied upon the merits. The instant one was denied as a mere duplication of the first. Petitioner in several letters written to the Dis trict Court Judge admitted that the claimed deprivation of the psychiatric examination was merely a device to enable the judge to vacate petitioner’s original sentence and impose a lower one based on prison rehabilitation. The District Court properly refused to utilize 28 U.S.C. § 2255 for such a purpose. United States v. Marchese, 341 F. 2d 782, 788 (9th Cir. 1965).
We agree that the first motion was frivolous as was that portion of the second motion which was repetition.
One claim newly asserted in the second petition — failure to comply with F.R.Cr.P. 11 in accepting the guilty plea ■ — is without merit. The transcript of the proceeding shows full compliance. Williams v. United States, 466 F. 2d 672 (9th Cir. 1972).
The judgment is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- United States & Preston Smith v. Marchese, 341 F.2d 782 (9th Cir. 1965)
- Williams v. United States, 466 F.2d 672 (9th Cir. 1972)