reaching the merits of the subsequent application. Sanders v. United States, supra, 373 U.S. at p. 15, 83 S. Ct. at p. 1077.
In the denial of the petitioner's first motion the sentencing judge stated in his opinion:
'Careful consideration persuades us that the motion and the files and records of the case conclusively show that the prisoner is not entitled to the relief sought.'
We have made an exhaustive study of the grounds alleged in the prior motion which are numerous and have compared them with the allegations contained in the second motion.
We find that the new grounds are at a variance from the matters considered in the first motion. However, we also find that all of the grounds alleged in the second application for relief existed and were known to the petitioner at the time he filed his first motion on October 29, 1962.
In addition to the foregoing principles outlined by the Supreme Court, the test remains the same as to whether 'the ends of justice' require the Federal judge to reach the merits of a successive § 2255 motion. Sanders v. United States, supra, 373 U.S. at pp. 18, 19, 83 S. Ct. at pp. 1078, 1079.
We find that the petitioner's second application is an abuse of the remedy provided by § 2255.
'Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.' Sanders v. United States, supra, 373 U.S. at p. 18, 83 S. Ct. at p. 1078, and Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
It is apparent from a reading of the petitioner's second motion that these grounds could have been alleged in his prior motion since none of them relate to matters outside of the records and files involved in this case. Good faith required the petitioner to advance these claims in his first petition, and for that reason we deny his request for a hearing.
Even assuming arguendo that we considered this motion as an original writ of habeas corpus
giving full consideration to the petitioner appearing pro se and in forma pauperis, it is our considered opinion that the motion, files and records of this case clearly demonstrate the propriety of our denial.
And now, this 18th day of September, 1963, the motion of Leroy Haith to vacate and set aside the sentence be and is denied.