Opinion
No. 18436.
February 28, 1968.
Henry Clay Ethington, Jr., in pro. per.
Ernest W. Rivers, U.S. Atty., John R. Wilson, Asst. U.S. Atty., Louisville, Ky., for appellee.
Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.
The District Court dismissed appellant's second motion to vacate sentence under 28 U.S.C. § 2255. The United States Attorney has filed a timely motion to affirm the judgment of the District Court under Rule 18(5) of the rules of this Court, as amended December 12, 1967.
"(5) Motion to Dismiss or Affirm
"Within fifteen days after the appeal has been docketed in this Court, the appellee may file a motion to dismiss or a motion to affirm. Where appropriate, a motion to affirm may be united in the alternative with a motion to dismiss.
"(a) The Court will receive a motion to dismiss any appeal on the ground that the appeal is not within the jurisdiction of this Court.
"(b) The Court will receive a motion to affirm the judgment sought to be reviewed on the ground that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument.
"The motion to dismiss or affirm shall be filed with the clerk in conformity with Paragraph (1) of this Rule.
"The appellant shall have seven days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the Court for its consideration.
"After consideration of the papers distributed pursuant to the foregoing paragraph, or on its own motion when it is apparent from the record that the appeal is not within the jurisdiction of the Court or that it is manifest that the questions on which decision of the Court depends are so unsubstantial as not to need further argument, the Court will enter an appropriate order.
"The time for filing briefs pursuant to Rule 16 shall not be tolled or extended by the filing of a motion to dismiss or affirm."
In Ethington v. United States, 379 F.2d 965 (6th Cir.), this Court affirmed the judgment of the District Court in disposing of appellant's first motion to vacate sentence. The second motion raises substantially the same issues that were presented in the former case. 28 U.S.C. § 2255 expressly provides that: "[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner."
This panel has been appointed by the Chief Judge under Rule 3(5) to consider the motion to affirm. We conclude that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument and that the appeal is entirely without merit.
The motion to affirm the judgment of the District Court is sustained.
Affirmed.