United States v. Phillip Lynn Lloyd

972 F.2d 355

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
UNITED STATES OF AMERICA, Appellee,
v.
Phillip Lynn LLOYD, Appellant.

No. 92-1320.

United States Court of Appeals,
Eighth Circuit.

Submitted: July 13, 1992.
Filed: July 16, 1992.

Before FAGG, BOWMAN, and WOLLMAN, Circuit Judges.

PER CURIAM.

1

In United States v. Lloyd, 947 F.2d 339, 340 (8th Cir. 1991) (per curiam), we affirmed Lloyd's conviction on nine counts of bankruptcy fraud, but vacated his sentence and remanded the case to the district court1 for resentencing. Lloyd again appeals his conviction and sentence following resentencing.

2

Lloyd argues that he did not receive effective assistance of trial or appellate counsel. These claims are premature. "Claims of ineffective assistance of counsel normally are raised for the first time in collateral proceedings under 28 U.S.C. § 2255 ... because normally such [claims] cannot be advanced without the development of facts outside the original record." United States v. Lewin, 900 F.2d 145, 149 (8th Cir. 1990) (quoting United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978)). Lloyd's claim regarding the district court's ruling on impeachment evidence was decided against him in this court's previous decision, Lloyd, 947 F.2d at 340, and that decision is the law of the case. See United States v. Librach, 536 F.2d 1228, 1232 (8th Cir.), cert. denied, 429 U.S. 939 (1976).

3

Lloyd's remaining claims, regarding the district court's determination of the amount of money involved and failure to advise him of the consequences of not testifying, could have been raised in his first appeal. This court, hearing the same case on a subsequent appeal, need not consider these issues. See United States v. Wright, 716 F.2d 549, 550 (9th Cir. 1983) (per curiam), cited with approval in Sanders v. Frisby, 736 F.2d 1230, 1232 (8th Cir. 1984) (per curiam).

4

The judgment is affirmed.

1

The Honorable George Howard, Jr., United States District Judge for the Eastern District of Arkansas