Carlos Molina v. Richard H. Rison, Warden

Appellant Carlos Molina appeals from the dismissal, without a hearing, of his third motion under 28 U.S.C. § 2255 challenging his conviction and sentence on one count of bank robbery. Molina's motion raises two issues. First, Molina contends that the sentencing judge improperly relied on the fact that Molina had refused to cooperate with the probation office. We reject this claim as successive, because it raises a ground that was decided adversely to Molina, on the merits, in proceedings concerning a prior § 2255 motion. Second, Molina contends that the sentencing judge should have recused himself. We conclude that Molina cannot raise this issue on a § 2255 motion because he has procedurally defaulted. Accordingly, we affirm the dismissal of Molina’s motion.

I

Molina was convicted on April 23, 1980 after a bench trial held before Judge Tur-rentine on stipulated facts. The probation office was ordered to conduct a presen-tence investigation. Molina’s defense counsel instructed him not to discuss the case with anyone, including the probation office, while the appeal of his conviction was pending in this court.

On April 28, 1980, Molina’s codefendant, Mary DeVargas, pleaded guilty…