Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

Melvin T. Wilcox appeals from the district court's dismissal of his second 18 U.S.C. § 2255 motion. Construing the pro se litigant's pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), his claim before the district court is susceptible to two interpretations: Wilcox may have intended to reassert the claim of ineffective assistance of counsel at trial first raised in his prior motion, or he may have meant that counsel appointed to represent him on his first motion was ineffective. Additionally, Wilcox attempted to state new grounds in his objections to the magistrate's report. We consider each theory in turn, reviewing the district court's decision de novo. United States v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987).

1. The district court interpreted the second 2255 motion as realleging that Wilcox received ineffective assistance of counsel at trial, and therefore dismissed it as successive. A section 2255 motion may be dismissed as successive "only if (1) the same ground presented in the subsequent motion application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits on the subsequent motion." Sanders v. United States, 373 U.S. 1, 15 (1963); see Chua Han Mow v. United States, 730 F.2d 1308, 1310 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985).

While Wilcox presented new factual allegations in his objection to the magistrate's report, the legal basis was the same. See Sanders, 373 U.S. at 16 ("identical grounds may often be proved by different factual allegations"). Moreover, the district court held an evidentiary hearing on the first motion and clearly denied it on the merits. The first two elements of the Sanders test were therefore satisfied.

Although the district court did not make a specific finding that the ends of justice would not be served by reconsidering the merits of the claim, we "must still affirm 'if the motion, files, and records in the case conclusively showed the motion to be without merit.' " Chua Han Mow, 730 F.2d at 1310 (quoting United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981)). The prisoner has the burden of proof. Sanders, 373 U.S. at 17. Having made no showing that justice would be served by reconsideration of his claim, Wilcox has failed to carry his burden.

2. Alternatively, Wilcox's second 2255 motion may have been alleging that he received ineffective assistance of counsel during the prosecution of the first motion. To prevail on an ineffective assistance of counsel claim, Wilcox must show that his counsel's representation fell below an objective standard of reasonableness and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

Wilcox's second motion alleged that "Appointed counsel representing Petitioner's original section 2255 motion, failed to amend Petitioner's motion in order to show that a Rule violation causes prejudice and harmful constitutional error to petitioner at the time of Trial, the Prosecutor ['s] whole case lay totally on evidence obtained unlawfully." Clerk's Record Tab 71, at 6A. We understand Wilcox to have been claiming that counsel's failure to amend the original motion to state a successful claim based on the Rule 41(a) violation constituted ineffective assistance. In reviewing Wilcox's first motion, we held that "a violation of Rule 41(a) does not afford a criminal defendant an avenue of relief under Sec. 2255." United States v. Wilcox, 640 F.2d 970, 974 (9th Cir. 1981). Nothing counsel could have done would have circumvented this holding.

3. In his objections to the magistrate's report, Wilcox seems to allege that additional errors were committed at trial, namely that there was insufficient evidence to support a conviction and that prior convictions were erroneously admitted. The court declined to consider these new claims because they were not raised by the petition. On appeal, Wilcox argues that the district court should have allowed him to amend to make his claims more definite and certain. Although the district court might have allowed Wilcox to amend his motion to state these grounds with more particularity, the failure to do so is not reversible error. Raiford v. United States, 483 F.2d 445, 446 (9th Cir. 1973). In any event, Wilcox is not precluded from bringing these grounds in a future motion. Id.

AFFIRMED.