974 F. 2d 1338 - Malone v. United States

974 F2d 1338 Malone v. United States

974 F.2d 1338

Leslie MALONE, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 92-1244.

United States Court of Appeals, Sixth Circuit.

Aug. 20, 1992.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KENNEDY and JONES, Circuit Judges, and CELEBREZZE, 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, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Leslie Malone filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in which he challenged the constitutionality of a 1989 criminal sentence. The district court dismissed the motion as successive under Rule 9(b), Rules Governing Section 2255 Proceedings. This appeal followed. The parties have briefed the issues; Malone is acting without counsel.

3

Upon consideration, we find no error in the proceedings on review. The district court's characterization of Malone's motion as successive is clearly correct. Sanders v. United States, 373 U.S. 1, 15-17 (1963). In addition, any new claims that may be distilled from the motion were subject to dismissal as constituting an abuse of the writ. See McCleskey v. Zant, 111 S.Ct. 1454, 1466-67 (1991). The ends of justice would likewise not be served by reviewing the merits of Malone's claims as he has not supplemented his claims with a colorable showing of factual innocence. Kuhlman v. Wilson, 477 U.S. 436, 454 (1986).

4

Accordingly, the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.