Steven Michael Wronko, Petitioner-appellant, v. United States of America, Respondent-appellee, 51 F.3d 284 (9th Cir. 1995)

MEMORANDUM^** 

Steven Michael Wronko, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate or set aside his sentence for a 1991 conspiracy and firearm charges. We previously affirmed Wronko's conviction and sentence after resentencing on direct appeals in unpublished memorandum dispositions. For the first time in his Sec. 2255 motion, Wronko contends that his due process rights were violated at jury trial because: (1) the Government used perjured testimony; (2) insufficient evidence supported his conviction for the firearm charge under a theory of coconspirator liability; and (3) the trial court failed to define "reasonable foreseeability" for the jury and the Government made an alleged improper closing argument regarding "foreseeability." We review de novo, Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994), and we affirm.

In order to obtain collateral relief under Sec. 2255, Wronko must demonstrate both cause excusing his failure to raise the claimed errors on direct appeal, and actual prejudice resulting from the claimed errors.¹  See United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). Wronko's explanation that his previously retained counsel failed to raise these issues in past litigation does not demonstrate cause excusing his procedural default. See id. at 945. We therefore conclude that the district court properly denied Wronko's Sec. 2255 motion based upon procedural default. See Dunne v. Henman, 875 F.2d 244, 247 (9th Cir. 1989) (we may affirm on any basis fairly supported by the record). We reject as frivolous Wronko's assertion that the Government did not properly respond to his Sec. 2255 motion.

AFFIRMED.