Joe Morales v. United States

431 F.2d 475

Joe MORALES, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 29562

Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

Sept. 22, 1970.

Joe Morales, pro se.

Seagal V. Wheatley, U.S. Atty., Reese L. Harrison, Jr., Asst. U.S. Atty., San Antonio, Tex., for respondent-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

1

Morales, represented by counsel, was convicted upon his plea of guilty of two counts of selling heroin not from the original stamped package, in violation of 26 U.S.C.A. 4704(a). After sentence there was no direct appeal. The District Court denied Morales' 2255 motion without an evidentiary hearing.

2

The sole contention on appeal is that the statute under which Morales was convicted is unconstitutional in light of Leary v. United States, 1969,395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57. But this argument was put to rest by Turner v. United States, 1970, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610, and United States v. Walker, 5 Cir. 1969, 414 F.2d 876.

The appeal is therefore frivolous and is

3

Dismissed.

4

*Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I.