Unpublished Disposition, 904 F.2d 42 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 42 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,v.William James HESS, Jr., Defendant-Appellant.

No. 89-30147.

United States Court of Appeals, Ninth Circuit.

Submitted May 24, 1990.* Decided May 31, 1990.

Before SCHROEDER, REINHARDT and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

William James Hess, Jr., appeals pro se the district court's denial of his post-judgment motion. We affirm.

In 1985, Hess entered a conditional plea of guilty in federal court to armed bank robbery and use of a firearm. He was sentenced to fifteen years on the bank robbery charge and five years on the firearm charge, with the sentences to run consecutively. Hess was also prosecuted in state court for shooting at a police officer in the course of his escape from the bank robbery. The state court sentenced him to ten years on this count, to run consecutively with his federal sentences.

After receiving his sentence, Hess attempted to consolidate a habeas corpus petition with his direct appeal of his federal sentence. This motion was denied by order of this court. United States v. Hess, No. 85-3093 (9th Cir. March 4, 1986).

On direct appeal, Hess contended that his consecutive federal sentences violated his constitutional rights and that the government breached the plea agreement when the federal court sentenced him prior to his sentencing in state court.1  This court found Hess's contentions to be without merit and affirmed his sentence in an unpublished opinion. United States v. Hess, No. 85-3093 (9th Cir. Nov. 21, 1986).

In 1989, Hess filed a "Motion for Reconsideration of Petition for Writ of Habeas Corpus," in which he asked the district court to review the issues he presented in the habeas petition that he had attempted to consolidate with his direct appeal. The district court's denial of that motion forms the basis of this appeal.

Hess first contends that the sequential sentencing in the federal and state courts violated his constitutional rights. However, we found on direct appeal that Hess was properly sentenced in federal court. If Hess seeks to challenge his state sentence, we agree with the district court that he should file a habeas petition under 28 U.S.C. § 2254 in the district court.

Hess also contends that the government breached the plea agreement when the federal court sentenced him prior to his sentencing in the state court. Yet, Hess also raised this issue on direct appeal and we decided there was no breach. Because Hess has not shown manifest injustice or a change in the law, the district court's dismissal of this claim was proper. Polizzi v. United States, 550 F.2d 1133, 1135 (9th Cir. 1976).

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Hess alleged that the government promised to not oppose a staying of sentence in federal court until after the state court had sentenced him