469 F2d 1083 Forsberg v. United States

469 F.2d 1083

Floyd Clayton FORSBERG, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 72-2168.

United States Court of Appeals,
Ninth Circuit.

Nov. 24, 1972.

Sidney I. Lezak, U. S. Atty., Michael L. Morehouse, Asst. U. S. Atty., Portland, Ore., for respondent-appellee.

Before MERRILL, CARTER and WRIGHT, Circuit Judges.

PER CURIAM:

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1

This is an appeal by a federal prisoner from the denial of a motion to vacate his sentence pursuant to 28 U.S.C. Sec. 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.

2

His contentions are without merit.

3

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 District 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. Sec. 2255 for such a purpose. United States v. Marchese, 341 F.2d 782, 788 (9th Cir. 1965).

4

We agree that the first motion was frivolous as was that portion of the second motion which was repetition.

5

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).

6

The judgment is affirmed.