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MORALES v. UNITED STATES

No. 29562 Summary Calendar.

431 F.2d 475 (1970)

Joe MORALES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

United States Court of Appeals, Fifth Circuit.

September 22, 1970.

Attorney(s) appearing for the Case

Joe Morales, pro se.

Seagal V. Wheatley, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for respondent-appellee.

Before GEWIN, GOLDBERG and DYER, Ciircuit Judges.

PER CURIAM:

Morales, represented by counsel, was convicted upon his plea of guilty of two counts of selling heroin not from the original stamped package, in violation of 26 U.S.C.A. § 4704(a). After sentence there was no direct appeal. The District Court denied Morales' § 2255 motion without an evidentiary hearing.

The sole contention on appeal is that the statute under which Morales was convicted is unconstitutional in light of Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. But this argument was put to rest by Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610, and United States v. Walker, 5 Cir. 1969, 414 F.2d 876.

The appeal is therefore frivolous and is

Dismissed.

FootNotes


* Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I.

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