Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Robert I. FELDMAN; aka Robert Feldman; aka Irwin Feldman;aka Aba Feldman; aka Aba Mezie; aka Robert Faye,Defendant-AppellantRobert I. FELDMAN; aka Robert Feldman; aka Irwin Feldman;aka Aba Feldman; aka Aba Mezie; aka Robert Faye,Petitioner-Appellant,v.UNITED STATES of America, Respondent-AppelleeRobert I. FELDMAN; aka Robert Feldman; aka Irwin Feldman;aka Aba Feldman; aka Aba Mezie; aka Robert Faye,Petitioner-Appellant,v.Harvey COX, Warden, et al. Respondent-Appellee.

No. 89-50310.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 3, 1990.* Decided Jan. 31, 1991.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL, and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Feldman was convicted of, inter alia, mail fraud and violating RICO. The facts that precipitated Feldman's conviction were stated by the Ninth Circuit on Feldman's original appeal. See United States v. Feldman, 853 F.2d 648, 651-652, 666-667. Feldman sought to collaterally attack his convictions under 28 U.S.C. § 2255, the district court denied his motion, and Feldman now appeals.

The district court had jurisdiction pursuant to 28 U.S.C. § 2255. A district court disposition of a Sec. 2255 motion is appealable as a final order. See Andrews v. United States, 373 U.S. 334, 339-40 (1963); 28 U.S.C. § 2255 (appeal from district court order on a Sec. 2255 motion as from a final judgment in habeas corpus). The denial of a motion under Sec. 2255 is reviewed de novo. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987).

Feldman previously directly appealed his conviction. United States v. Feldman, 853 F.2d 648 (9th Cir. 1988). It is settled that issues raised on direct appeal are not subject to collateral attack under Sec. 2255. United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985); Egger v. United States, 509 F.2d 745, 748 (9th Cir.), cert. denied, 423 U.S. 842 (1975); Medrano v. United States, 315 F.2d 361, 362 (9th Cir.), cert. denied, 375 U.S. 854 (1963).

Feldman argues that he is asserting "new" claims rather than seeking to relitigate old ones, and it is true that he has varied his arguments somewhat. Two standards have been articulated by Ninth Circuit courts faced with appellants who assert variations on old claims. The older formula is that " [g]rounds which were apparent on the original appeal cannot be made the basis for a second attack under Sec. 2255." Egger v. United States, 509 F.2d 745, 748 (9th Cir.), cert. denied, 423 U.S. 842 (1975) (emphasis added). A second approach is found in Molina v. Rison, 886 F.2d 1124, 1127 (9th Cir. 1989). The Molina approach focuses on whether the claims are the same, though the supporting statements and facts for the claims may vary.

Whether we follow the formulation of Egger or Molina, several of Feldman's claims have already been addressed: prosecutorial misconduct through inflammatory statements in the closing argument, 853 F.2d at 665; erroneous jury instructions, id. at 652-54; sufficiency of the evidence, id. at 654-55; inadvertent submission of indictment allegations regarding forfeiture to the jury, id. at 664-65; ineffective assistance of trial counsel, id. at 665. Feldman also asserts that the prosecutor in his closing argument made veiled comment on Feldman's failure to testify. Although the Feldman court did not address this issue in its opinion, the issue was before that court. Red Br. at 11; Red Br. in original appeal at 45. Feldman thus cannot relitigate it now. See Redd, 759 F.2d at 701.

Since the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," 28 U.S.C. § 2255, the district court properly dismissed these previously litigated matters without conducting a hearing.

Feldman argues that the prosecution withheld specifically requested exculpatory evidence and thus violated its duty to turn such evidence over to the defense. See Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecution has an obligation to turn over only "material" exculpatory evidence, and evidence is "material" only if there is a reasonable probability that had it been disclosed to the defense the result of the proceedings would have been different. United States v. Bagley, 473 U.S. 667, 682-685 (1985); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (dictum). A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the trial. Id.

Feldman claims that the government withheld two items of evidence. The first item concerns certain maintenance records of a time clock company. At trial, a government witness testified that burn marks on a time-clock's wiring were consistent with the time clock's use as a timer for an incendiary device. Feldman argues that, had maintenance records of the time clock company been produced by the government, these records would have shown that the burn marks were the product of normal use. However, it seems unlikely that this additional ground for impeaching one government witness would have changed the outcome of the trial. Feldman thus cannot show that this allegedly undisclosed exculpatory evidence was "material."

Feldman also claims that a police report was withheld in violation of Brady.1  Feldman argues that this undisclosed police report, written by officers who were on the scene shortly before the conflagration began, did not mention the presence of gasoline. This second alleged Brady violation also concerns a matter that is "immaterial" as Bagley defines the term. The government produced sufficient evidence to prove that arson was committed. See Feldman, 853 F.2d 648. The mere fact that police officers who may have been at the scene of the arson prior to it did not mention fumes does not call into doubt the outcome of the trial. The district court properly dismissed Feldman's Brady claim without a Sec. 2255 hearing.

Feldman argues that his appellate counsel was so ineffective that he was deprived of due process, but this claim cannot withstand much scrutiny. In order to establish ineffective assistance of counsel, a defendant must demonstrate both that his counsel's performance was deficient, and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir. 1985). A court faced with an assertion of ineffective counsel must "indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Id.

Feldman's appellate counsel raised numerous issues, and did so with sufficient competence to provoke a lengthy published opinion from this court. Moreover, Feldman's counsel declined to raise only meritless issues. Feldman thus cannot satisfy Strickland, and no Sec. 2255 hearing on this question was necessary.

The district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 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

We note that since Feldman did not assert this violation in his opening brief, he is precluded from asserting it now. See Fed. R. App. P. 28(a) (4); Daggett v. Kimmelman, 811 F.2d 793, 799 n. 1 (3d Cir. 1987). While Feldman is conducting his appeal pro se, he is knowledgeable about his case and could easily have raised his new Brady violation previously