452 F.2d 1194 | 5th Cir. | 1972
Lead Opinion
Jose Alberto Ugarte-Veizaga appeals from the denial of his motion under 28 U.S.C. § 2255 to vacate his conviction and ten-year sentence resulting from a jury verdict finding him guilty of importing cocaine in violation of 21 U.S.C. §§ 173, 174. He alleges three grounds of error on appeal: (1) that the lower court erred in not granting a hearing to consider questions of fact raised in his Section 2255 motion:
The district court ruled against petitioner on alleged errors Nos. (1) and (2) noted previously, because the same issues had been raised and disposed of by the trial on the merits before a jury which decided against petitioner. Petitioner appealed from the original judgment of conviction and we affirmed. United States v. Ugarte-Veizaga, 5 Cir., 1970, 420 F.2d 677. We agree that the issues here are the same as those previously asserted on the prior appeal. A Section 2255 motion cannot be used in lieu of an appeal on the merits nor will issues disposed of on a previous appeal be reviewed again on such a motion. See, e. g., Dirring v. United States, 5 Cir., 1967, 370 F.2d 862.
As to alleged error No. (3), appellant relies on the recent Supreme Court decision in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). In Turner, the Supreme Court held that the presumptions of Section 174 were unconstitutional when small amounts of cocaine were involved because statistics showed that
Walker v. United States, 5 Cir., 1970, 433 F.2d 306, is analogous to the case before us. Walker was convicted for illegally importing marihuana in violation of 21 U.S.C. § 176a. Both Section 174 and Section 176a contain virtually identical presumptions concerning mere possession of “narcotic drugs” and “marihuana,” respectively.
Affirmed.
. The factual issues included petitioner’s allegation that he had no intent to import cocaine into this country; that he was in transit without intention of remaining in the United States; and that he inadvertently passed through U.S. Customs.
. “Section 174 contains two presumptions. The first, the presumption of importation, permits a jury to infer the fact of illegal importation of a narcotic drug from a defendant’s possession of the drug; the second, the presumption of knowledge, permits an inference that the defendant who possesses the drug knew that the drug was illegally imported.” United States v. Gonzalez, 2 Cir., 1971, 442 F.2d 698, 707-708.
. 21 U.S.C. § 174 provides in relevant part:
“Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”
21 U.S.C. § 176a provides in relevant part:
“Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.”
Rehearing
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.