decided: January 21, 1957.
UNITED STATES OF AMERICA, APPELLEE,
JAMES QUON, APPELLANT.
Before SWAN, MEDINA and WATERMAN, Circuit Judges.
SWAN, Circuit Judge.
This appeal was argued with United States v. Landi, 2 Cir., 240 F.2d 238. On the merits the questions are identical with those discussed in the Landi opinion handed down January 8, 1957. We would affirm without more except for the Government's contention that the present appeal should be dismissed.
The defendant pleaded guilty to counts 1 and 3 of an indictment which charged substantive violations of the narcotic laws, 21 U.S.C.A. §§ 173 and 174, and conspiracy to violate them. On December 19, 1955 he was given a cumulative sentence of five years on count 1 and two and one-half years on count 3. Thereafter he moved under Rule 35, Fed.Rules Crim.Proc. 18 U.S.C.A., for a modification of the sentence. The motion was denied January 30, 1956 and notice of appeal was filed February 11th. This was too late, and the appeal was subsequently discontinued.*fn1 On February 27, 1956 defendant again moved, under Rule 35 and 28 U.S.C.A. § 2255, for a modification of the sentence. This motion was denied March 16, 1956. A timely appeal was taken from that order.
The motion was denied on two grounds: first because "it is in effect a disguised motion for reargument of the original motion for modification * * *; and, secondly, assuming that it is a motion to correct an illegal sentence, it is denied on the substantive merits."*fn2
The denial of a motion for reargument does not extend the time for appealing from the original order. United States v. Bloom, 2 Cir., 164 F.2d 556; United States v. Froehlich, 2 Cir., 166 F.2d 84, 85; Carter v. United States, 10 Cir., 168 F.2d 310, 311. Indeed, the appellant makes no claim that we should review the denial of his first motion. An order denying reargument can be reviewed only for an abuse of discretion, and when, as in the case at bar, there is "* * * no new matter which was relied on to support the motion for reargument, there is nothing to indicate any abuse of discretion" as we held in the Froehlich case, supra [166 F.2d 85]. Hence, viewed as a motion for reargument denial of the motion was correct.
In denying the motion "on the substantive merits," the court followed, without discussing it, the procedure approved in Ekberg v. United States, 1 Cir., 167 F.2d 380, namely, entertaining a second motion under the first sentence of Rule 35, which authorized the correction of an illegal sentence "at any time," notwithstanding the previous denial of the same motion. We agree with the Ekberg decision. The Government fears that the acceptance of such procedure may open the door to evasion of the time limitation for filing appeals. We think the fear is exaggerated. The repetition of motions under the first sentence of Rule 35 is somewhat analogous to successive habeas corpus proceedings.*fn3 As was said in United States ex rel. Gregoire v. Watkins, 2 Cir., 164 F.2d 137, 138, "This does not mean that a prisoner may again and again call upon a court to repeat the same ruling; the court may, in the exercise of discretion, protect itself against a pertinacious relator." Moreover, section 2255, Title 28 U.S.C.A. provides: "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." But here the sentencing court did entertain it. On the merits denial of the motion was correct for reasons stated in the Landi opinion, supra.