451 F2d 358 McLean v. United States

451 F.2d 358

Kevin McLEAN, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 79, Docket 71-1215.

United States Court of Appeals,
Second Circuit.

Submitted Oct. 4, 1971.
Decided Nov. 16, 1971.

Kevin McLean, petitioner-appellant pro se.

Whitney North Seymour, Jr., U. S. Atty., for the S.D.N.Y., W. Cullen MacDonald and Peter F. Rient, Asst. U. S. Attys., of counsel, for respondent-appellee.

Before MURRAH,* WATERMAN and SMITH, Circuit Judges.

PER CURIAM:

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1

Kevin McLean, convicted and sentenced after jury trial in the United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge, appeals from denial by Judge Wyatt without a hearing of his petition for vacation of sentence under 28 U.S.C. Sec. 2255. We find no error and affirm the judgment.

2

The petition, based on a claim of incompetence, set forth no matter not already considered by the court at the time of the criminal trial. Prior to the trial a hearing was had, at which McLean's wife testified. The court also required a psychiatric examination and report. Neither McLean's counsel nor McLean requested an additional hearing at the time. Denial of relief under section 2255 without further hearing was proper under the circumstances. Judgment affirmed.

3

A "motion for vacation of sentence by default of respondent" filed August 31, 1971 is denied, respondent's brief having been filed August 27, 1971.

*

Senior Circuit Judge for the Tenth Circuit, sitting by designation