Ralph Ausba Wynn v. United States ( 1995 )

___________
No. 95-1954
___________
Ralph Ausba Wynn, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
United States of America, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: December 22, 1995
Filed: December 29, 1995
___________
Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Ralph Ausba Wynn was convicted of bank robbery and sentenced to
fifty-one months imprisonment. He filed this 28 U.S.C. § 2255 motion,
citing numerous instances of ineffective assistance of counsel, and
asserting that the six-month delay between his arrest and indictment
violated the Speedy Trial Act, 18 U.S.C § 3161(b). The district court1
denied relief, and we affirm.
As a preliminary matter, we note that since the filing of his section
2255 motion, Wynn has been released from custody. Nevertheless, his appeal
is not moot because he was in custody when he filed his motion, and his
conviction could have collateral
1
The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.
consequences in the future. See Clemmons v. United States, 721 F.2d 235,
237 n.3 (8th Cir. 1983).
As to Wynn's ineffective-assistance claims, first, we see no merit
to his contention that counsel was ineffective for failing to pursue a
diminished capacity defense, as a court-ordered psychiatric examination
revealed that Wynn was mentally competent at the time of the offense. See
Mathenia v. Delo, 975 F.2d 444, 448 (8th Cir. 1992), cert. denied, 113 S.
Ct. 1609 (1993). We reject Wynn's attempt to supplement the record with
regard to this claim. See Dakota Indus., Inc. v. Dakota Sportswear, Inc.,
988 F.2d 61, 63 (8th Cir. 1993). Second, Wynn's assertion that counsel
performed deficiently in failing to make certain evidentiary objections is
likewise without merit, as there was no basis for making such objections.
See Anderson v. Goeke, 44 F.3d 675, 680 (8th Cir. 1995). Third, in light
of the strong evidence against Wynn--which included photographs of him from
the bank's security cameras and identification by two eyewitnesses--counsel
was not ineffective in conceding that Wynn took the money, and arguing that
he was guilty of only the lesser included offense of bank larceny. See
Dokes v. Lockhart, 992 F.2d 833, 836 (8th Cir. 1993), cert. denied, 115 S.
Ct. 437 (1994). Fourth, the mere fact that Wynn's counsel subsequently
went to work for the United States Attorney's Office does not demonstrate
that "``an actual conflict of interest adversely affected his . . .
performance.'" Strickland v. Washington, 466 U.S. 668, 692 (1984) (quoted
case omitted).
Wynn's claim concerning the delay between his arrest and indictment
is not cognizable in a section 2255 motion. See Monteer v. Benson, 574
F.2d 447, 449 (8th Cir. 1978). Finally, we do not address his claim,
raised for the first time on appeal, that he was not tried by a jury of his
peers. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir. 1993),
cert. denied, 114 S. Ct. 887 (1994).
Accordingly, we affirm.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-