Unpublished Disposition, 872 F.2d 430 (9th Cir. 1987)

MEMORANDUM

Phillips was indicted on 25 counts of mail fraud in violation of 18 U.S.C. § 1341 and 1 count of using a fictitious name to defraud in violation of 18 U.S.C. § 1342. Phillips pled guilty to three counts of mail fraud and the remainder were dismissed. In this, his sixth venture to our court, Phillips contends primarily that his motion for relief pursuant to 28 U.S.C. § 2255 was improperly denied because the government could not have proven an element of one of the three counts. We have jurisdiction pursuant to 28 U.S.C. § 2255 and we affirm.

Phillips states that he now believes he did not place in a United States postal box the letter referred to in count one. As the magistrate pointed out, the "sworn plea colloquy ... made it abundantly clear that the act of mailing was part of the charge to which he was pleading." Magistrate's Findings and Recommendations, July 22, 1987, p. 2. We agree. See Watts v. United States, 841 F.2d 275 (9th Cir. 1988) (per curiam). Since this defense is meritless, Phillips was not prejudiced by his counsel's failure to raise it. See Strickland v. Washington, 466 U.S. 668, 693 (1984).

Finally, he alleges that his plea was involuntary because the prosecutor threatened his wife. This claim was not properly raised in the district court and we will not address it. United States v. Grewal, 825 F.2d 220, 223 (9th Cir. 1987) (issue raised after denial of a 28 U.S.C. § 2255 motion but not raised below not considered on appeal).

AFFIRMED.