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876 F2d 103 Henderson v. United States

876 F.2d 103

Andre T. HENDERSON, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 88-1819.

United States Court of Appeals, Sixth Circuit.

June 8, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before KEITH and ALAN E. NORRIS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

ORDER

1

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Andre T. Henderson appeals the denial of his motion to vacate his sentence filed under 28 U.S.C. Sec. 2255. Henderson pleaded guilty to possession of stolen mail and was sentenced to two years imprisonment on October 10, 1985. Thereafter, Henderson sought postconviction relief by motions filed under Fed.R.Crim.P. 35 and 32 and by petition for writ of coram nobis, all of which were summarily denied by the district court.

3

Henderson then filed his motion to vacate sentence alleging: (1) his pre-sentence investigation report is inaccurate because it contains convictions which petitioner now claims were uncounseled, and (2) that he is entitled to sentence credit under 18 U.S.C. Sec. 3568 for time spent in state custody. The magistrate recommended that the motion be denied as successive pursuant to Rule 9(b), Rules Governing Section 2255 Proceedings. The district court adopted the magistrate's recommendation over Henderson's objection.

4

Upon consideration, we conclude that the motion was properly denied as successive. Each of Henderson's claims was considered and rejected by the district court in prior postconviction proceedings. Accordingly, the motion is successive. See Sanders v. United States, 373 U.S. 1, 15 (1963); United States v. Taylor, 768 F.2d 114, 120 n. 7 (6th Cir.1985). Further, the ends of justice would not be served by addressing the merits of the claims asserted. See Sanders, 373 U.S. at 15.

5

Therefore, the judgment of the district court is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.