David Wayne Baker v. United States , 856 F.2d 192 ( 1988 )

856 F.2d 192

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
David Wayne BAKER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 88-5228.

United States Court of Appeals, Sixth Circuit.

Aug. 24, 1988.

1

Before NATHANIEL R. JONES and RYAN, Circuit Judges, and THOMAS G. HULL, Chief District Judge.*

ORDER

2

This pro se federal prisoner appeals the order of the district court denying his motion to vacate his sentence filed under 28 U.S.C. Sec. 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Baker pled guilty to distribution of cocaine. He was sentenced to fifteen years imprisonment and placed on three years special parole. In this, his second Sec. 2255 motion, petitioner contends that his sentence is unconstitutionally disproportionate and that he was denied his sixth amendment right to effective assistance of counsel.

4

Upon consideration, we conclude that petitioner's claim of disproportionate sentencing is without merit, as his sentence is within the statutory limits, and the record shows that the sentencing judge did not abuse his discretion. Furthermore, we conclude that petitioner's claim of ineffective assistance is successive, as his previous motion on the same ground was denied on the merits. Baker v. United States, 781 F.2d 85 (6th Cir.), cert. denied, 107 S.Ct. 667 (1986). We find the claim to be successive even though it raises different factual allegations and legal arguments. Compare Lonberger v. Marshall, 808 F.2d 1169, 1173 (6th Cir.), cert. denied, 107 S.Ct. 2195 (1987).

5

Accordingly, the order of the district court is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Thomas G. Hull, Chief U.S. District Judge for the Eastern District of Tennessee, sitting by designation