OpenJurist

919 F2d 144 Howell v. United States

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Robert Steven HOWELL, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 90-15564.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Nov. 20, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Robert Steven Howell, a federal prisoner, appeals pro se the district court's order denying his 28 U.S.C. Sec. 2255 motion. The district court refused to consider Howell's double jeopardy challenge to his consecutive sentence because the same challenge had been considered and rejected by this court on Howell's direct appeal. We review de novo, United States v. Quan, 789 F.2d 711, 713 (9th Cir.1986), cert. dismissed, 478 U.S. 1033 (1986), and we affirm.

3

Consecutive sentences may be imposed for violations of multiple statutory offenses within one count of criminal conduct so long as each offense requires proof of a factor which the other does not. See Colley v. Sumner, 784 F.2d 984, 989 (9th Cir.1986), cert. denied, 479 U.S. 839 (1986) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).

4

Issues disposed of on direct appeal are generally not reviewable in a subsequent section 2255 proceeding unless there has been a change in the law or in order to prevent manifest injustice. Polizzi v. United States, 550 F.2d 1133, 1135-36; see also United States v. Currie, 589 F.2d 993, 995 (9th Cir.1979).

5

It is undisputed that Howell challenged the imposition of consecutive sentences in his direct appeal and that this court rejected the challenge. In upholding the sentencing structure that Howell received in the district court, we determined that each count for which he received a consecutive sentence required proof of an element that the other counts did not.

6

There has been no change in law concerning consecutive sentences for multiple offenses since Howell's direct appeal. Nor has Howell produced evidence showing that the district court's denial of his section 2255 motion resulted in manifest injustice.1 Accordingly, the district court properly denied Howell's section 2255 motion.2

7

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. 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

In contending that there has been a change in law since his direct appeal, Howell cites to Grady v. Corbin, 110 S.Ct. 2084 (1990) and United States v. Anderson, 850 F.2d 563 (9th Cir.1988). Howell's reliance on these cases is misplaced

In Grady, the Supreme Court reconsidered the standard for determining whether the double jeopardy clause's safeguard against successive prosecutions had been violated but did not disturb that law as it relates to multiple punishments. See generally Grady v. Corbin, 110 S.Ct. 2084 (1990).

Anderson involved an interpretation of the Blockburger test rather than a change in the law. In Anderson, we held that because proof of embezzlement of mail will "necessarily include" proof of unlawful delay of mail, Congress could not have intended to punish each of the crimes separately. See 850 F.2d at 568. Thus, even if Anderson could be characterized as a change in the law, it would have no application to this case because we have already held that each count for which Howell received a consecutive sentence required proof of an element that the other counts did not.

2

In his section 2255 motion, Howell alleged that his attorney rendered him ineffective assistance of counsel in connection with his consecutive sentences. Because he fails to raise the issue on appeal, we decline to consider it. Collins v. San Diego, 841 F.2d 337, 339 (9th Cir.1988). In any event, Howell has not shown that his counsel's performance was deficient or that he was prejudiced by any omission. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)