196 F2d 619 Whiting v. United States

196 F.2d 619




No. 11458.

United States Court of Appeals Sixth Circuit.

April 7, 1952.

Herbert C. Brinkman, Jr., Cincinnati, Ohio, for appellant.

John J. Kane, Jr., Cleveland, Ohio, for appellee.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.



This case came on to be heard upon the motion of appellant to vacate sentence, the record and briefs and oral argument of counsel;


And it appearing that appellant was found guilty of mailing threatening communications, in violation of 18 U.S.C. § 338a(a), now § 876, and duly sentenced in accordance with the statute;


And it appearing that appellant has previously filed a motion under § 2255, 28 U.S.C., which was denied by the District Court, the denial of the motion being affirmed by this court, Whiting v. United States, 6 Cir., 181 F.2d 643, certiorari denied, 341 U.S. 905, 71 S.Ct. 607, 95 L. Ed. 1344;


And it appearing that the motion from the denial of which this appeal is prosecuted was likewise filed under § 2255, 28 U.S.C., and is an attempt to reopen the proceedings in the trial court as if on appeal, which under the applicable decisions cannot be done, Davilman v. United States, 6 Cir., 180 F.2d 284; Hudspeth v. United States, 6 Cir., 183 F.2d 68, 69; Taylor v. United States, 4 Cir., 177 F.2d 194;


It is ordered that the order of the District Court overruling appellant's motion and petition be, and it hereby is, affirmed.