420 F2d 690 Smith v. United States

420 F.2d 690

Joe SMITH, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 27770 Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 21, 1970.

Joe Smith, pro se.

Ira DeMent, U.S. Atty., William H. Thomas, Asst. U.S. Atty., Montgomery, Ala., for defendant-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

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1

All the contentions made by appellant in this appeal from the denial of his motion brought under Title 28 U.S.C.A. 22551 to set aside sentence have been considered and rejected by this court in his direct appeal. See Smith v. United States, 5 Cir. 1968, 392 F.2d 169; cert. denied 393 U.S. 941, 89 S.Ct. 308, 21 L.Ed.2d 278. The present appeal is therefore frivolous.2

2

The appeal is dismissed.

1

Although appellant styled his petition 'habeas corpus' we will treat it as a 2255 motion

2

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, 5 Cir. 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Company, 5 Cir. 1969, 417 F.2d 526, Part I