582 F2d 347 Coney v. United States

582 F.2d 347

Robert C. CONEY, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 78-2649

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Oct. 20, 1978.

Robert C. Coney, pro se.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Asst. U. S. Atty., Oxford, Miss., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GODBOLD, RONEY, and RUBIN, Circuit Judges.

BY THE COURT:

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1

The Motion for Leave to Proceed in Forma Pauperis is GRANTED. The Motion for Appointment of Counsel is DENIED because briefing and argument on the appeal are unnecessary. See Lewis v. Bragan, 5 Cir. 1978, 576 F.2d 678. The appellant's new set of pleadings was, in effect, a second motion for relief under 28 U.S.C. § 2255. It raised a claim of mental incompetency at the time the guilty plea was entered, a new claim not presented in the original Section 2255 motion. This claim should be considered on the merits, and the case is remanded for an evidentiary hearing on that issue. Sanders v. United States, 1963, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148.

2

With respect to the claims for denial of assistance of counsel, failure to hold a sanity hearing, excessiveness of the sentence, and involuntariness of the guilty plea, the decision of the trial court is AFFIRMED.

3

The case is REMANDED for further proceedings consistent with this order.

4

AFFIRMED IN PART and REMANDED IN PART.

*

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