Unpublished Disposition, 919 F.2d 146 (9th Cir. 1984)

MEMORANDUM^** 

Richard Dota, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. In his petition, Dota challenges his conviction of conspiracy and sale of stolen goods transported in interstate commerce in violation of 18 U.S.C. §§ 371, 2315 on grounds of: (1) duplicitous indictment (2) insufficient evidence of stolen goods and (3) improper jury instructions.

In August, 1982, Dota was indicted on two counts by a grand jury. In August, 1983, a jury found him guilty on both counts. In October, 1983, Dota was sentenced to five years of imprisonment for each count, the years to run consecutively.

In October, 1984, Dota's conviction was affirmed by the Ninth Circuit. United States v. Richard Dota, No. 83-1270 (9th Cir. October 12, 1984). In October, 1985, Dota filed a section 2255 petition which, after technical difficulties, was denied in July of 1986. Dota then appealed.

We review the district court's denial of Dota's section 2255 motion de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989) (per curiam). Petitioner must make specific factual claims which, if true, would entitle him to relief. Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982).

Although Dota contends that the two counts of the indictment are duplicitous, they are not. The first count is conspiracy to transport stolen goods in interstate commerce, in violation of 18 U.S.C. § 371, while the second count is sale of stolen goods transported in interstate commerce, in violation of 18 U.S.C. § 2315.

Dota's second and third contentions are related. Because there was testimony at the trial that the paintings were not stolen, Dota contends that the indictment was incorrectly worded and that it is unclear whether the jury convicted him of stolen paintings or stolen jewelry. However, we do not need to reach this issue because the issue of the stolen paintings was apparent to Dota at the time of his appeal and he failed to raise it in his appeal on the merits. This circuit has concluded that 28 U.S.C. § 2255 is not designed to provide criminal defendants repeated opportunities to overturn their convictions on grounds which could have been raised on direct appeal. United States v. Dunham, 767 F.2d 1397 (9th Cir. 1985).

We affirm the lower court's denial of Dota's section 2255 petition.