United States of America, Plaintiff-appellee, v. Louis Sogoian, Defendant-appellant, 67 F.3d 310 (9th Cir. 1995)

MEMORANDUM^** 

Louis Sogoian appeals pro se the district court's denial of his second 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.

Sogoian contends that the district court improperly rejected the following claims: (1) the government failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1983); (2) the court relied on contested information in determining his sentence; and (3) he was denied his constitutional rights to have witnesses testify on his behalf at trial and to confront and cross-examine government witnesses.

The district court properly dismissed Sogoian's first two claims as successive because these claims were rejected on the merits in his first section 2255 motion. See United States v. Mathews, 833 F.2d 161, 164-65 (9th Cir. 1987).

The district court properly dismissed Sogoian's remaining claim as an abuse of the writ because he offered no justification for his failure to raise this claim in his first section 2255 motion nor did he allege any facts suggesting actual innocence. See Rule 9(b), Rules Governing Section 2255 Cases, 28 U.S.C. foll. Sec. 2255; cf. McCleskey v. Zant, 499 U.S. 467 (1991).

Finally, relief under section 2255 is not available to correct the sentencing court's alleged failure to append to the presentence report a written record of its determination that it would not rely on contested presentence material. See United States v. Knockum, 881 F.2d 730, 732 (9th Cir. 1989).

AFFIRMED.