Moody v. U.S.
| Decision Date | 07 August 1978 |
| Docket Number | No. 77-3433,77-3433 |
| Citation | 580 F.2d 238 |
| Parties | Gurney W. MOODY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gurney W. Moody, pro se.
James C. Cissell, U. S. Atty., Cincinnati, Ohio, Mary Jane McFadden, Asst. U. S. Atty., Dayton, Ohio, for respondent-appellee.
Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and PECK, Senior Circuit Judge.
This appeal from a judgment denying petitioner's 1977 motion to vacate sentence pursuant to 28 U.S.C. § 2255 was submitted to the court on the district court record and briefs of the parties. The petitioner was sentenced in 1972 to two five-year terms to run consecutively upon his conviction both of possessing and selling counterfeit obligations, violations of 18 U.S.C. §§ 472 and 473 respectively. These convictions were affirmed on appeal.
In his present appeal petitioner argues that he was exposed to double jeopardy by being sentenced to consecutive terms for offenses arising out of a single transaction, that the consecutive sentences are void on the ground of "multiplicity" and that the trial court erred in the sentencing by relying on hearsay information outside the record. The double jeopardy claim and the contention that his due process rights were violated by the sentencing court's reliance on information outside the record are completely without merit.
The government argues that failure to object to an indictment on grounds of multiplicity constitutes a waiver of any claim that multiple sentences on the charges are impermissible. This court has held otherwise. See United States v. Rosenbarger, 536 F.2d 715, 721-22 (6th Cir. 1976), Cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977). In Gentry v. United States, 533 F.2d 998 (6th Cir. 1976), we considered a claim of multiplicity of sentences first raised in a § 2255 motion after both convictions had been affirmed on direct appeal. The government's contention that this claim is not cognizable in a § 2255 proceeding is contrary to the law of this circuit.
However, we do not reach the claim of multiplicious sentences for another reason. In 1973 the petitioner filed a § 2255 motion in which he raised the identical issue. The district court denied that motion and entered a memorandum opinion setting forth the reasons. Though petitioner filed a notice of appeal he did not pursue the matter and this court dismissed the...
To continue reading
Request your trial
-
U.S. v. Abboud
...of the Double Jeopardy Clause. This view has been acknowledged by the Court, both in the multiplicity context, see Moody v. United States, 580 F.2d 238, 239 (6th Cir.1978), and in the duplicity context, see United States v. Adesida, 129 F.3d 846, 849 (6th Cir.1997) (holding that a defendant......
-
Murray v. U.S., 90-2201
...appeal followed. The standard of review in this case is whether the district court abused its discretion. See Moody v. United States, 580 F.2d 238, 239 (6th Cir.1978) (per curiam). Under Rule 9(b), Rules Governing Section 2255 Proceedings, a second or successive petition may be dismissed if......
-
Wood v. U.S.
...Proceedings. Generally, dismissals pursuant to Rule 9(b) will be reviewed only for an abuse of discretion. Moody v. United States, 580 F.2d 238, 239 (6th Cir.1978) (per curiam). Under Rule 9(b), a successive motion may be dismissed if the judge finds that it fails to allege new or different......
-
Renfro v. U.S., 95-2298
...reasserts the claim he set forth in the district court. The district court did not abuse its discretion. See Moody v. United States, 580 F.2d 238, 239 (6th Cir.1978) (per curiam). A motion to vacate may be denied as successive if: 1) the same ground presented in the subsequent application w......