United States of America, Plaintiff-appellee, v. Darrell Hurt, Defendant-appellant, 127 F.3d 1107 (9th Cir. 1997)

MEMORANDUM^* 

Federal prisoner Darrell Hart appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his jury conviction and sentence for bank robbery and using a firearm during a crime of violence. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255. We review de novo a district court's denial of a federal prisoner's section 2255 motion, see United States v. Span, 75 F.3d 1383, 1386 (9th Cir. 1996), and we affirm.

Hart contends that he was subject to double jeopardy because both the original and superseding indictments were outstanding and valid at the time of his trial. We disagree. There was no second prosecution or multiple punishment for the same offense because Hart was tried only on the superseding indictment, and thus, Hart was not subject to double jeopardy. See United States v. Halper, 490 U.S. 435, 440 (1989); United States v. Holm, 550 F.2d 568, 569 (9th Cir. 1977).

Hart contends that the 30-day requirement of 18 U.S.C. § 3161(c) (2) was violated because he was forced to trial one week after the superseding indictment was filed. We do not address this issue because Hart failed to raise it in the district court. See United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

Hart litigated his ineffective assistance of counsel and Fourth Amendment claims on direct appeal, and thus, he is barred from raising the same issue on collateral review in this section 2255 motion. See United States v. Hearst, 638 F.2d 1190, 1196 (9th Cir. 1980).

Hart's contention that his trial counsel was ineffective for refusing to allow Hart to testify and for asking improper questions lacks merit. Contrary to Hart's assertion, the record demonstrates that it was Hart's own decision not to testify. Hart cites no specific instance where his attorney asked improper questions. Thus, Hart failed to show either deficient performance or prejudice, and accordingly, Hart's trial counsel was not ineffective. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Hart contends that he was deprived of a fair and impartial trial because prior to deliberations, a no-adverse-inference jury instruction was not given on Hart's right not to testify. This contention lacks merit because Hart never requested an instruction admonishing the jury not to draw an adverse inference from his failure to testify, and the jury was given a no-adverse-inference instruction during voir dire. See Carter v. Kentucky, 450 U.S. 288, 300 (1981); United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996).¹ 

AFFIRMED.