Judson Broadus-Bey v. Dr. Murray A. Diamond , 264 F.2d 242 ( 1959 )

264 F.2d 242

Judson BROADUS-BEY, Appellant,
v.
Dr. Murray A. DIAMOND, Appellee.

No. 13629.

United States Court of Appeals Sixth Circuit.

Feb. 12, 1959.

David W. Fries, Cincinnati, Ohio, for appellant.

Henry J. Cook, Marvin D. Jones and N. Mitchell Meade, U.S. Attys., Lexington, Ky., for appellee.

Before MARTIN, Chief Judge, and ALLEN and MILLER, Circuit Judges.

PER CURIAM.

1

This is an appeal from an order of the District Court denying appellant's application for a writ of habeas corpus. A former application for a writ of habeas corpus attacking the validity of the same judgment was previously denied by the District Court. This ruling was affirmed by this Court in Broadus v. Lowry, 6 Cir., 245 F.2d 304, wherein the factual background is stated.

2

Insofar as the present application attempts to again raise questions considered in the prior application or which could have been presented and considered in the prior application, the District Judge was not required to entertain it. Sec. 2244, Title 28 U.S.C.; Wong Doo v. United States, 265 U.S. 239, 241, 44 S. Ct. 524, 68 L. Ed. 999; United States ex rel. Goodchild v. Burke, 7 Cir., 245 F.2d 88, 91-92; Swihart v. Johnston, 9 Cir., 150 F.2d 721, 723, certiorari denied 327 U.S. 789, 66 S. Ct. 803, 90 L. Ed. 1016.

3

If petitioner is now relying upon a new ground which he contends was not previously available to him, there is no showing that he has applied for relief to the District Court wherein he was sentenced, or that the remedy by such a motion before that court would be inadequate or ineffective to test the legality of his detention. Sec. 2255, Title 28 U.S.C.

4

The judgment of the District Court is affirmed.