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12 F3d 1108 United States v. Bean

12 F.3d 1108

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Joseph BEAN, Jr., Defendant-Appellant.

No. 93-55093.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 17, 1993.*
Decided Dec. 6, 1993.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: SCHROEDER, D.W. NELSON, and THOMPSON, Circuit Judges.

MEMORANDUM**

Michael Joseph Bean, Jr., appeals pro se from the summary denial of his 28 U.S.C. Sec. 2255 motion to vacate his sentence imposed following his conviction for bank robbery in violation of 18 U.S.C. Sec. 2113(a). Bean contends that the district court erred by denying his claims that (1) he was prejudiced by late receipt of his presentence report because the report contained errors regarding his criminal history and (2) he was improperly sentenced as a career offender because his prior convictions were related. We have jurisdiction under 28 U.S.C. Sec. 2255, and we affirm.

"[W]hen a federal prisoner presents a claim in a Sec. 2255 petition that he has presented previously, the federal court retains the discretion to refuse to consider the claim on the basis that the prisoner is abusing the writ. The court must entertain the claim, however, if there is inter alia, 'manifest injustice.' " Walter v. United States, 969 F.2d 814, 816 (9th Cir.1992) (citations omitted); see United States v. Sood, 969 F.2d 774, 775-76 (9th Cir.1992) (manifest injustice exists if, for example, defendant can show, through an intervening change in the law, that his conduct was not a violation of the law under which he was convicted).

1

Here, Bean raised his claims on direct appeal, and we rejected them. See United States v. Bean, No. 89-50633, unpublished memorandum disposition (9th Cir. Feb. 28, 1991). He has not shown that the district court's refusal to reconsider them was a manifest injustice. See Walter, 969 F.2d at 816; Sood, 969 F.2d at 775-76. Accordingly, we affirm the denial of Bean's Sec. 2255 motion.

2

AFFIRMED.

*

The panel unanimously finds this case suitable for decision withour oral argument. Fed.R.App.P. 34(a); 95h Cir.R. 34-4. Accordingly, appellant's 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