Opinion
No. 16700.
February 8, 1961.
Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.
The judgment of conviction and sentence against appellant has heretofore been affirmed by us in Stoneking v. United States, 8 Cir., 232 F.2d 385, certiorari denied 352 U.S. 835, 77 S.Ct. 54, 1 L.Ed. 2d 54; 354 U.S. 941, 77 S.Ct. 1406, 1 L. Ed.2d 1540.
Appellant has since filed four successive motions under 28 U.S.C.A. § 2255 to have the judgment of conviction and sentence set aside, each of which has been denied by the District Court. His fourth motion, which is here involved, was disposed of on the ground that the matters set out therein had been in substance determined in the three previous proceedings and had been held not to raise any question of violation of constitutional rights which could collaterally go to the legality or validity of his conviction and sentence, so as to be capable of being urged in a § 2255 proceeding.
The Court clearly was entitled to make denial of the motion on this basis, under the provision of § 2255 that "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." See also Bistram v. United States, 8 Cir., 283 F.2d 1, 3.
Appellant's challenge here to the trial court's certificate that his appeal is not taken in good faith is accordingly overruled, and similarly his motion for leave to prosecute his appeal in forma pauperis and for appointment of counsel to represent him is denied.
For record purposes, the appeal will be permitted to be docketed without payment of fee, and it will thereupon be dismissed as being frivolous.
Appeal dismissed.