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111 F3d 139 United States v. M Tinsley

111 F.3d 139

UNITED STATES of America, Plaintiff-Appellee,
v.
John M. TINSLEY, Defendant-Appellant.

No. 95-30364.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1997.
Decided April 18, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK*, District Judge.

2

MEMORANDUM**

3

John M. Tinsley appeals the district court's order revoking his probation and sentencing him to a three-year term of imprisonment for equity skimming in violation of 12 U.S.C. § 1709-2. In this direct appeal, Tinsley urges this Court to set aside the guilty plea that led to his probation and suspended sentence. He argues that the district court lacked jurisdiction to accept his plea because the indictment failed to charge a crime and contends we should entertain this appeal because his claim has never been decided on the merits by this Court.

4

In 1991, Tinsley filed a motion pursuant to 28 USC § 2255 to set aside his conviction because the indictment failed to charge a crime. The district court denied the motion and Tinsley's appeal was dismissed for failure to prosecute. In 1995, Tinsley filed a motion to reopen his prior habeas petition. The motion to reopen was denied by the district court. On appeal, we affirmed the district court and concluded that "because Tinsley's challenge to the indictment was nonmeritorious, counsel was not ineffective for failing to raise this issue."

5

Thus, contrary to what Tinsley asserted in his brief and at oral argument, this Court has previously addressed the merits of his claim. Having done so, we are constrained by law of the case from considering the merits again.

6

"The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case." In Re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir.1996) (quotations omitted); see Kimball v. Callahen, 590 F.2d 768, 771 (9th Cir.) ( [U]nder the 'law of the case' doctrine one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case.") cert. denied, 444 U.S. 826 (1979).

7

The judgment of the district court is AFFIRMED.

*

Honorable John W. Sedwick, U.S. District Judge for the District of Alaska, sitting by designation

**

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