Orlando Michael Sample v. United States , 52 F.3d 334 ( 1995 )

52 F.3d 334

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 94-55281.

United States Court of Appeals, Ninth Circuit.

Submitted April 4, 1995.*
Decided April 10, 1995.

Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges.

1

MEMORANDUM**

2

Orlando Michael Sample appeals the district court's second dismissal of his petition for relief under 28 U.S.C. Sec. 2255, which followed a limited remand from this court. Sample claims that his plea of guilty to bank robbery was not knowing and voluntary because the district court failed to establish a factual basis and because his lawyer failed to inform him that there were no eyewitnesses to identify him as the robber.

3

We review de novo the district court's denial of a petition for relief under 28 U.S.C. Sec. 2255. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991). We also consider de novo whether a district court's colloquy with a defendant satisfies the requirements of Rule 11. United States v. Bruce, 976 F.2d 552, 559 (9th Cir.1992).

4

Here, the plea transcript shows that after the government described the evidence against Sample, the district court asked "So, you don't have any serious problem in agreeing with me that there is a factual basis for the plea?" Both Sample and his attorney agreed. Moreover, before Sample entered his plea, his attorney stated on the record that no witness to the robbery had identified him from photospreads, and the government agreed that "there were no positive identifications made at all." In light of these statements, we conclude Sample's contentions are meritless. We decline to consider his other claims, raised for the first time in this appeal. See United States v. Keller, 902 F.2d 1391, 1395 (9th Cir.1990).

5

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Williams' request for oral argument is denied

**

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