Emilio Hernandez-valenzuela, Petitioner-appellant, v. United States of America, Respondent-appellee, 985 F.2d 572 (9th Cir. 1993)

MEMORANDUM^** 

Emilio Hernandez-Valenzuela appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion and his subsequent motion for reconsideration. Appellant was convicted of smuggling marijuana over the Mexican border in violation of 21 U.S.C. §§ 841(a) (1), 952, and 960. Appellant contends that (1) the district court interfered with his sixth amendment right to counsel by failing to grant more than a two-day continuance to enable his newly-substituted attorney to prepare for trial; and (2) he was denied a fair trial because a customs inspector asked him who he was just before the trial, thus rendering the inspector's in-court identification unreliable. We review the denial of a section 2255 motion de novo, Doganiere v. United States, 914 F.2d 165, 167 (9th Cir. 1990), cert. denied, 111 S. Ct. 1398 (1991). We affirm.

On direct appeal, this court held that the district court did not abuse its discretion by granting only a two-day continuance to allow the appellant's newly-substituted attorney to prepare for trial because a further extension was not requested. See United States v. Hernandez-Valenzuela, 932 F.2d 803, 804 (9th Cir. 1991) (per curiam). To the extent that appellant continues to assert that the district court's failure to grant more than a two-day continuance was an abuse of discretion, this court's prior ruling is the law of the case and we decline to reconsider the issue. See United States v. Mills, 810 F.2d 907, 909 (9th Cir.), cert. denied, 484 U.S. 832 (1987).

Appellant also argues that the district court interfered with his sixth amendment right to counsel by failing to grant a further continuance. This contention also lacks merit.

Here, appellant makes no specific showing of prejudice or deficient performance by counsel. Under these circumstances, the district court's failure to grant a lengthy continuance did not violate the sixth amendment. See Strickland v. Washington, 466 U.S. 688, 687 (9th Cir. 1984); cf. United States v. Pederson, 784 F.2d 1462, 1464 (9th Cir. 1986) (refusal to grant continuance of more than two days to allow replacement attorney to prepare case did not violate the sixth amendment where case did not involve complex issues and appellant cited no specific showing of prejudice or ineffective assistance of counsel in the record).¹ 

Finally, appellant contends that he was denied a fair trial because the customs inspector "withheld exculpatory information" at trial. Specifically, appellant states that on the morning of trial, the inspector went to the holding cell and asked appellant if he was Hernandez-Valenzuela. Appellant claims he responded by nodding in the affirmative. Appellant appears to argue that the in-trial identification was therefore unreliable. Appellant did not raise this argument or allege these facts prior to filing his section 2255 motion. Instead, appellant previously challenged the in-court identification on other grounds.² 

A petitioner who fails to raise a claim at trial or on direct appeal is barred from raising it in a section 2255 motion unless he can show cause and prejudice for the procedural default. United States v. Frady, 456 U.S. 152, 167-68 (1982).

As cause for his procedural default, appellant argues that he did not raise this claim because he did not realize its potential importance. However, we agree with the district court that appellant must have recognized the prejudicial nature of the alleged encounter: he raised other similar objections to the in-court identification and his principal defense was mistaken identity. Cf. Abatino v. United States, 750 F.2d 1442, 1445 (9th Cir. 1985) (petitioner "must have recognized" the prejudicial nature of challenged jury instruction, and therefore, did not show cause for failing to bring a timely objection). Because appellant has not shown cause for his procedural default, he is now barred from raising his claim. See Frady, 456 U.S. at 168; cf. Abatino, 750 F.2d at 1445.³ 

AFFIRMED.