Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

James T. Nolan, a federal prisoner, appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his firearm conviction. Nolan contends that he is entitled to a new trial based on newly discovered evidence: a certain exculpatory statement that would support a self-defense theory. We affirm.

Newly discovered evidence must be information that was discovered after trial. United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970 (1981). Evidence is not newly discovered if all of the underlying facts were known to the movant at the time of trial. Bauman v. United States, 692 F.2d 565, 580 (9th Cir. 1982). Nolan knew the underlying facts at the time of trial. At the time of the incident which led to his conviction, Nolan was with the witness who made the exculpatory statement. Therefore, the statement is not newly discovered evidence. See Bauman, 692 F.2d at 580.

Nolan also contends that this court should reexamine alleged prosecutorial misconduct. Nolan raised these issues in his direct appeal, and this court affirmed the district court's actions. See United States v. Nolan, 700 F.2d 479 (9th Cir.), cert. denied, 462 U.S. 1123 (1983). Nolan may not relitigate these issues in a subsequent habeas proceeding. See United States v. Currie, 589 F.2d 993, 995 (1979).

AFFIRMED.