United States v. Alfred Ethridge , 110 F.3d 70 ( 1997 )

110 F.3d 70

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Alfred ETHRIDGE, Defendant-Appellant.

No. 96-55759.

United States Court of Appeals, Ninth Circuit.

Submitted March 24, 1997.*
Decided March 27, 1997.

Before: SNEED, FARRIS, and THOMAS, Circuit Judges.

1

MEMORANDUM**

2

Federal prisoner Alfred Ethridge appeals pro se the district court's denial of his second 28 U.S.C. § 2255 motion. We review de novo a district court's decision on a section 2255 motion. Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir.1995). We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.

3

Ethridge's contention that there was insufficient evidence regarding the weight of the narcotics to support his sentence was resolved against him by this court in his direct criminal appeal. United States v. Ethridge, No. 89-50336 (9th Cir. Dec. 15, 1992). Accordingly, Ethridge cannot reargue this matter in his section 2255 motion. See United States v. Redd, 759 F.2d 699, 701 (9th Cir.1985) (per curiam).

4

Ethridge's remaining contentions raised for the first time in his second section 2255 motion are barred under the abuse of the writ doctrine. See Rule 9(b), Rules Governing Section 2255 Cases, 28 U.S.C. foll. § 2255; cf., McCleskey v. Zant, 499 U.S. 467, 489 (1991). Ethridge does not dispute that he has raised new claims for the first time in this section 2255 motion. Ethridge nevertheless fails to show that the new claims were unknown to him or could not have been discovered by him prior to his first section 2255 motion. See McCleskey, 499 U.S. at 494-95. Ethridge also fails to allege a constitutional violation that is supplemented by a colorable claim of factual innocence. See Rule 9(b), Rules Governing Section 2255 Cases, 28 U.S.C. foll. § 2255; McCleskey, 499 U.S. at 495.

AFFIRMED.1

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Ethridge's motion to file a late reply brief is granted