Dennis Bierilo, Plaintiff-appellant, v. United States of America, Defendant-appellee, 959 F.2d 239 (9th Cir. 1992)

MEMORANDUM^** 

Dennis Bierilo, a federal prisoner, appeals the district court's summary dismissal of his 28 U.S.C. § 2255 motion to vacate his sentence. We review de novo, United States v. Poopola, 881 F.2d 811, 812 (9th Cir. 1989), and we affirm.

In 1975, Bierilo pleaded guilty to importation of heroin. He was sentenced to a seven-year term of imprisonment and a special parole term of ten years. Bierilo filed his first section 2255 motion in 1978; he alleged that (1) he had received ineffective assistance of counsel, and (2) the special parole term had not been imposed at the sentencing hearing. This motion was denied. In 1987, he filed a motion under Fed. R. Crim. P. 35 to correct his sentence and again challenged the special parole term, this time on the ground that it was not authorized by the statute under which he had been convicted. This motion also was denied. On March 16, 1990 Bierilo filed a second section 2255 motion and again alleged that the special parole term was illegal. On July 10, 1990 Bierilo filed an "amended complaint," in which he further alleged that the indictment against him was defective and his attorney rendered ineffective assistance. The district court summarily dismissed the action.

The district court may dismiss a section 2255 motion summarily " [i]f it plainly appears from the face of the motion and the prior proceedings in the case that the movant is not entitled to relief in the district court." Rule 4, Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. § 2255. Dismissal is proper if the "allegations, viewed against the record, either fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).

Bierilo's claims that his counsel was ineffective and the special parole term is illegal were properly dismissed because these claims are successive. Bierilo previously has raised the same grounds for relief and they were determined adversely to him, the previous determinations were on the merits, and the ends of justice would not be served by reaching the merits of these claims again because he has made no colorable showing of factual innocence. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion); Sanders v. United States, 373 U.S. 1, 15-16 (1963); Rule 9(b), Rules Governing Section 2255 Proceedings.

Moreover, Bierilo waived his claim that the indictment was defective by pleading guilty. See United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989) (voluntary and intelligent guilty plea generally "erases claims of constitutional violation arising before the plea"); United States v. Mathews, 833 F.2d 161, 163-65 (9th Cir. 1987) (defendant who enters a voluntary and intelligent plea upon advice of competent counsel cannot collaterally attack the validity of the plea).¹ 

Accordingly, the district court did not err by summarily dismissing Bierilo's section 2255 motion. See Marrow, 772 F.2d at 526; Rule 4, Rules Governing Section 2255 Proceedings.

AFFIRMED.²