Ernest Wagner v. United States , 924 F.2d 1060 ( 1991 )

924 F.2d 1060

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Ernest WAGNER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 90-1673.

United States Court of Appeals, Sixth Circuit.

Feb. 5, 1991.

Before BOYCE F. MARTIN, Jr. and KRUPANSKY, Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

1

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Ernest Wagner filed a motion to vacate under 28 U.S.C. Sec. 2255 in which he challenged the constitutionality of 1986 convictions for heroin distribution. The district court summarily denied the relief sought because Wagner had filed an earlier unsuccessful motion and this appeal followed. The parties have briefed the issues, Wagner proceeding without counsel.

3

We have reviewed the limited record before us and are unable to ascertain the exact basis for the district court's decision. The order does not expressly mention Rule 9(b), Rules Governing Section 2255 Cases (dealing with successive petitions). Instead, the order may be construed as according a blanket preclusive effect to the initial motion. This holding would be contrary to law. Sanders v. United States, 373 U.S. 1, 15-19 (1963). We must therefore return the matter to the district court for a ruling on the merits or for an analysis under Sanders as to why the motion is precluded as successive.

4

Accordingly, the district court's judgment is vacated and remanded. Rule 9(b)(6), Rules of the Sixth Circuit.