940 F.2d 1534 | 9th Cir. | 1991
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
William E. HUTCHINGS VON LUDWITZ, Petitioner-Appellant,
v.
UNITED STATES of America, Fred J. Stock, Warden,
Respondents-Appellees.
No. 90-35709.
United States Court of Appeals, Ninth Circuit.
Submitted July 29, 1991.*
Decided Aug. 2, 1991.
Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.
MEMORANDUM**
William E. Hutchings von Ludwitz, a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2255 motion as successive. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir.1990), and we affirm.
A district court may dismiss a section 2255 motion, without a hearing, on the basis of a prior adjudication only if: "(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders v. United States, 373 U.S. 1, 15 (1963); see also 28 U.S.C. Sec. 2244(a); Rule 9(b), Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. Sec. 2255. The burden of proof is on the petitioner to establish that the ends of justice would be served by relitigation of the claims previously decided against him. Sanders, 373 U.S. at 17. To meet this burden, the petitioner must make a colorable showing of factual innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion).
Here, Hutchings von Ludwitz has filed four other section 2255 motions raising the same issues as were raised in his fifth section 2255 motion, which is the subject of this appeal. The district court properly dismissed his most recent section 2255 motion without holding an evidentiary hearing because (1) Hutchings von Ludwitz has raised the same grounds for relief in previous section 2255 motions and they were determined adversely to him, (2) the previous determinations were on the merits, and (3) the ends of justice would not be served by reaching the merits of these claims again because Hutchings von Ludwitz has made no colorable showing of factual innocence. See Kuhlmann, 477 U.S. at 454; Sanders, 373 U.S. at 15-16.
AFFIRMED.1
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Hutchings von Ludwitz's motion to expedite this appeal is denied as moot
