United States of America, Plaintiff-appellee, v. Arthur Payton, Defendant-appellant, 139 F.3d 909 (9th Cir. 1998)

MEMORANDUM^* 

Arthur D. Payton, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion challenging his conviction and sentence, imposed following his jury conviction for armed robbery, in violation of 18 U.S.C. § 2113(a) and (d). We have jurisdiction under 28 U.S.C. § 2255. We review for abuse of discretion, see Campbell v. Blodgett, 997 F.2d 512, 516 (9th Cir .1993), and affirm.

Payton contends that the district court erred by dismissing his second 2255 motion as an abuse of the writ. Specifically, he contends that his Fourth Amendment claim was raised in his first motion, but was unresolved by the district court. This contention lacks merit.

Here, Payton's claim constituted abuse of the writ because he failed to show or even allege cause for not raising his Fourth Amendment claim in his earlier section 2255 motion or that a fundamental miscarriage of justice would result from failing to address his claim. See Rule 9(b), 28 U.S.C. foll. § 2255; cf. McClesky v. Zant, 499 U.S. 467, 493-94, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). Accordingly, the district court did not abuse its discretion by denying Payton's second section 2255 motion. See Campbell, 997 F.2d at 516.

AFFIRMED.