Opinion
No. 10581.
March 1, 1948.
Appeal from the District Court of the United States for the Eastern District of Michigan; Theodore Levin, Judge.
Walter McDonald was convicted of an offense, and the conviction was affirmed on appeal. From an order denying defendant's motion to vacate the judgment of conviction, the defendant appeals.
Affirmed.
Walter McDonald of Alcatraz, Cal., on the brief, for appellant, pro se.
Joseph C. Murphy, of Detroit, Mich. (Thomas P. Thornton, Kenneth W. Smith, and Joseph C. Murphy, all of Detroit, Mich., on the brief), for appellee.
Before MARTIN, McALLISTER, and MILLER, Circuit Judges.
This is an appeal from an order entered on May 15, 1947, by Judge Levin in the United States District Court for the Eastern District of Michigan, denying the motion of Walter McDonald to vacate judgment of conviction entered in the same district by District Judge Moinet upon the verdict of a jury. This court heretofore affirmed on appeal a re-sentence of the convict by Judge Moinet within the lawful limits of section 588b, Title 12 U.S.C.A. McDonald v. Moinet, 6 Cir., 139 F.2d 939, certiorari denied, 322 U.S. 730, 64 S.Ct. 942, 88 L.Ed. 1565, rehearing denied, 322 U.S. 769, 64 S.Ct. 1142, 88 L.Ed. 1595. The Ninth Circuit Court of Appeals, in affirming dismissal of habeas corpus proceedings, took the same view which we did. McDonald v. Johnston, Warden, 9 Cir., 149 F.2d 768.
The present appeal raises substantially the same questions which have been three times adjudged adversely to appellant by United States Circuit Courts of Appeal. See McDonald v. Hudspeth, Warden, 10 Cir., 129 F.2d 196, certiorari denied, 317 U.S. 665, 63 S.Ct. 75, 87 L.Ed. 535; McDonald v. Hudspeth, Warden, 10 Cir., 113 F.2d 984, certiorari denied, 311 U.S. 683, 61 S.Ct. 64, 85 L.Ed. 441; Johnston, Warden v. McDonald, 9 Cir., 157 F.2d 275, certiorari denied, 329 U.S. 795, 67 S.Ct. 480.
An examination of the record before us shows that McDonald was not denied assistance of counsel, but was duly represented by an attorney upon arraignment and at his trial. This appears from the depositions of District Judge Moinet, who presided at the jury trial; of Assistant United States Attorney Babcock, who prosecuted appellant; and of Attorney Curran, who defended him. It is obvious that none of appellant's constitutional or lawful rights has been violated in the court below.
The judgment of the district court is affirmed.