502 P.2d 840 | Kan. | 1972
This is an appeal from the overruling of a motion to vacate sentence filed pursuant to K. S. A. 60-1507.
The appellant was tried and convicted in 1966 of burglary and larceny in connection with the burglary. He was sentenced under the Habitual Criminal Act. His conviction was upheld on direct appeal in State v. Cantrell, 201 Kan. 182, 440 P. 2d 580, cert. den. 39, U. S. 944, 21 L. Ed. 2d 282, 89 S. Ct. 315. Subsequently, and in November, 1968, a motion was filed to vacate the sentence. That motion was overruled and on appeal the trial court’s judgment was affirmed. (Cantrell v. State, 206 Kan. 323, 478 P. 2d 192.)
The appellant made an additional collateral attack against his sentence in Cantrell v. Crouse, Case No. L-944, United States District Court, District of Kansas, when he sought a writ of habeas corpus. That writ was denied in January, 1970.
This is appellant’s second motion to vacate his sentence. It was commenced pro se in May, 1971. On November 9, 1971, the district court overruled the motion in a well-written memorandum.
Two contentions are raised on appeal. Both relate to alleged trial errors.
K. S. A. 60-1507 (c) provides that the sentencing court is not required to entertain a second or successive motion for relief by the same prisoner. This court has also held that when a petitioner in answer to question No. 10 of the form prescribed by Rule No. 121 (205 Kan. xlv) sets out a ground or grounds for relief he is presumed to have listed all grounds of relief on which he is relying, (Smith v. State, 195 Kan. 745, 408 P. 2d 647), and a second motion
The judgment is affirmed.