825 F.2d 364 (11th Cir. 1987), 85-3517, United States v. Hobson

Docket Nº:85-3517, 86-3589.
Citation:825 F.2d 364
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Russell HOBSON, Defendant-Appellant. Russell HOBSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:August 25, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 364

825 F.2d 364 (11th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Russell HOBSON, Defendant-Appellant.

Russell HOBSON, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

Nos. 85-3517, 86-3589.

United States Court of Appeals, Eleventh Circuit

August 25, 1987

        Rehearing and Rehearing En Banc Denied Sept. 23, 1987.

Page 365

        James M. Shellow, Shellow, Shellow & Glynn, S.C., Stephen M. Glynn, Milwaukee, Wis., for defendant-appellant.

        Mike Moore, Kenneth Sukhia, Asst. U.S. Attys., Tallahassee, Fla., for plaintiff-appellee.

        James M. Shellow, Shellow, Shellow & Glynn, Stephen M. Glynn, Milwaukee, Wis., for petitioner-appellant.

        W. Thomas Dillard, U.S. Atty., Pensacola, Fla., Ferdinand W. Bockelman, Dept. of Justice, Washington, D.C., K.M. Moore, Asst. U.S. Atty., Kenneth W. Sukhia, Tallahassee, Fla., for respondent-appellee.

        Appeals from the United States District Court for the Northern District of Florida.

        Before GODBOLD and HILL, Circuit Judges, and ESCHBACH [*], Senior Circuit Judge.

        PER CURIAM:

        Hobson was convicted in 1981 on six counts relating to the importation and distribution of marijuana. He was sentenced to 35 years imprisonment, a fine of $110,000, and a two-year special parole term. His conviction was affirmed by the Eleventh Circuit in U.S. v. Bascaro, 742 F.2d 1335 (11th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985). 1 Hobson's subsequent motion for a new trial based on newly discovered evidence was denied by the district court. Hobson's appeal of this decision (No. 85-3517) was stayed pending the resolution of his motion to vacate his sentence under 28 U.S.C. Sec. 2255.

Page 366

        Hobson raised four issues in his Sec. 2255 motion before the district court: (1) ineffective assistance of counsel; (2) insufficiency of evidence to support conviction on any count; (3) government knowingly suppressed evidence; and (4) inadmissibility of wiretap evidence. The district court adopted the magistrate's initial and supplemental recommendations and denied Hobson's Sec. 2255 motion. Hobson appeals the district court's adverse ruling on two issues only, insufficiency of evidence and inadmissibility of the wiretap evidence. This appeal (No. 86-3589) was consolidated with his appeal of the district court's denial of his motion for a new trial (No. 85-3517). In both appeals we affirm the district court's denial of Hobson's motions.

        The district court refused to grant Hobson's Sec. 2255 motion on the ground of insufficiency of evidence because Hobson had raised this issue on direct appeal and lost. The Eleventh Circuit also rejected this claim in Hobson's petition for writ of error coram nobis. The district court reasoned that the law is well settled that prior consideration of a defendant's sufficiency of evidence claim precludes further review. We find no error in this reasoning. See Ordonez v. U.S., 588 F.2d 448, 448-49 (5th Cir.) (per curiam), cert. denied, 441 U.S. 963, 99 S.Ct. 2409, 60 L.Ed.2d 1068 (1979); see also U.S. v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986); U.S. v. Rowan, 663 F.2d 1034, 1035 (11th Cir.1981) (per curiam); U.S. v. Johnson, 615 F.2d 1125, 1128 (5th Cir.1980) (per curiam); U.S. v. Greer, 600 F.2d 468, 469 (5th Cir.), cert. denied, 444 U.S. 902, 100 S.Ct. 213, 62 L.Ed.2d 138 (1979); Buckelew v. U.S., 575 F.2d 515, 517-18 (5th Cir.1978); McGee v. U.S. District Court, 489 F.2d 703, 704 (5th Cir.1973) (per curiam). 2

        The district court held that because Hobson had lost on his claim regarding the inadmissibility of the wiretap evidence before the trial court and on appeal, it would not hold an evidentiary hearing and reconsider the issue in a collateral proceeding under Sec. 2255. The district court did not abuse its discretion. See Kaufman v. U.S., 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1074 n. 8, 22 L.Ed.2d 227 (1969); Buckelew v. U.S., 575 F.2d 515, 517-18 (5th Cir.1978); Vernell v. U.S., 559 F.2d 963, 964 (5th Cir.1977) (per curiam), cert. denied, 435 U.S. 1007,...

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