Orlando Michael Sample, Petitioner-appellant, v. United States of America, Respondent-appellee, 52 F.3d 334 (9th Cir. 1995)

MEMORANDUM^** 

Orlando Michael Sample appeals the district court's second dismissal of his petition for relief under 28 U.S.C. § 2255, which followed a limited remand from this court. Sample claims that his plea of guilty to bank robbery was not knowing and voluntary because the district court failed to establish a factual basis and because his lawyer failed to inform him that there were no eyewitnesses to identify him as the robber.

We review de novo the district court's denial of a petition for relief under 28 U.S.C. § 2255. Grady v. United States, 929 F.2d 468, 470 (9th Cir. 1991). We also consider de novo whether a district court's colloquy with a defendant satisfies the requirements of Rule 11. United States v. Bruce, 976 F.2d 552, 559 (9th Cir. 1992).

Here, the plea transcript shows that after the government described the evidence against Sample, the district court asked "So, you don't have any serious problem in agreeing with me that there is a factual basis for the plea?" Both Sample and his attorney agreed. Moreover, before Sample entered his plea, his attorney stated on the record that no witness to the robbery had identified him from photospreads, and the government agreed that "there were no positive identifications made at all." In light of these statements, we conclude Sample's contentions are meritless. We decline to consider his other claims, raised for the first time in this appeal. See United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990).

AFFIRMED.