475 F2d 788 Juelich v. United States

475 F.2d 788

H. E. JUELICH, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 72-3530 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

March 22, 1973.

H. E. Juelich, pro se.

Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for defendant-appellee.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

PER CURIAM:

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1

Petitioner, Herbert E. Juelich, appeals from the District Court's denial of his motion to vacate sentence, brought pursuant to 28 U.S.C. Sec. 2255. We find that petitioner's contention, that his constitutional right to due process was denied when evidence stemming directly from an "illegal" autopsy was admitted at his trial, was considered and ruled upon in 1963 at an evidentiary hearing held pursuant to an earlier Sec. 2255 motion. At that time, the District Judge rejected petitioner's contention, and we affirmed, Juelich v. United States, 5 Cir. 1965, 342 F.2d 29, 31.1 The District Court correctly rejected petitioner's motion without holding an evidentiary hearing because petitioner is seeking relief previously sought under the provisions of 28 U.S.C. Sec. 2255 on the same grounds previously raised and decided against him. Dryden v. United States, 5 Cir. 1972, 455 F.2d 491; Owens v. United States, 5 Cir. 1970, 430 F.2d 1173. We affirm.

2

Affirmed.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I

1

See the quotation from the transcript of the 1963 evidentiary hearing in Juelich v. United States, 5 Cir. 1968, 403 F.2d 523, 525