Appellant appeals from an order of the district court denying, without a hearing, his petition filed under 28 U.S. C. § 2255, to vacate and set aside or correct the sentence imposed upon him. In his § 2255 petition, appellant, in substance, claims that he “was not tried within the meaning of the Constitution,” in that “an alternate juror was permitted to enter the jury room and take part in the discussions, after six hours of discussions, without the personal consent of the appellant.”

Appellant was convicted on several counts of mail fraud and interstate transportation of stolen money, and sentenced to the custody of the Attorney General. On his direct appeal to this Court, appellant contended:

1) The district court erred in substituting an alternate juror for a regular juror who became sick after the jury retired to deliberate, notwithstanding the fact that appellant’s counsel, in open court, in appellant’s presence, and without any expression of disfavor by the appellant, expressly stipulated to the procedure after being informed by the district court that Rule 24, F.R.Crim.P., required the dismissal of alternate jurors after the jury deliberations had begun;

2) The above procedure placed appellant twice in jeopardy; and

3) That the above procedure resulted in illegal communication with the jury while deliberating.

This Court affirmed the judgment of conviction, stating:

In dismissing appellant’s petition, the district court stated:

The thrust of appellant’s position in this Court is that relitigation of the claims presented on direct appeal is justifiable when an intervening Supreme Court decision has changed the law which was relied on in the earlier appellate decision, and contends that such change took place in Brookhart v. Janis, 384 U.S. 1 , 86 S.Ct. 1245 , 16 L.Ed.2d 314 (1966).

We have examined Brookhart , and are satisfied that that decision has not changed the law as expressed and applied in our decision on appellant’s direct appeal.

The order of the district court is affirmed.