Clyde Turner v. United States

948 F.2d 1290 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Clyde TURNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 91-5546. United States Court of Appeals, Sixth Circuit. Nov. 29, 1991. Before MERRITT, Chief Judge, ALAN E. NORRIS, Circuit Judge, and GODBOLD, Senior Circuit Judge.* ORDER — 1 — Clyde Turner, a federal prisoner proceeding without the benefit of counsel, appeals from a judgment of the district court dismissing his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 9(a). Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). — 2 — Turner argued that he was illegally convicted of possessing a firearm in violation of 18 App. 2 U.S.C. § 1202(a)(1) because the statute under which he was sentenced had been repealed; that he is eligible for parole; that the district court had the authority to lower the sentence below the statutory minimum; and that the court wrongfully considered a Bureau of Prisons program statement in sentencing him. The district court dismissed Turner's motion. — 3 — We considered and answered this exact question in Turner's direct appeal. U.S. v. Turner, 859 F.2d 923 (6th Cir.1988) (table), cert. denied, 488 U.S. 1033 (1989). The issue here is precisely the same as the one presented and decided adversely to Turner in U.S. v. Turner, supra. Where an issue has been decided on direct appeal from a conviction, it cannot be relitigated again on a § 2255 motion. The decision on the direct appeal is the law of the case, absent the intervention of "new law" since the trial and appeal. See United States v. Davis, 472 F.2d 596 (9th Cir.1972), rev'd on other grounds, 417 U.S. 333 (1974); Pandelli v. United States, 635 F.2d 534 n. 1 (6th Cir.1980). — 4 — Turner's remaining arguments are meritless. Accordingly, the judgment of the district court is hereby affirmed for the reasons set forth in the court's Order of Dismissal dated March 15, 1991. Rule 9(b)(3), Rules of the Sixth Circuit. Footnotes [-s] * The Honorable John C. Godbold, Senior Circuit Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation