Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1991)

Marvin J. GRUSZIE, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 90-16369.

United States Court of Appeals, Ninth Circuit.

Submitted June 10, 1991.* Decided July 15, 1991.

Before CHAMBERS, BRUNETTI and RYMER, Circuit Judges.


MEMORANDUM** 

Federal prisoner Marvin Gruszie appeals pro se the denial of his motion to vacate sentence under 28 U.S.C. § 2255. Gruszie was convicted by guilty plea in 1979 for armed bank robbery.

We review the district court's denial of a Sec. 2255 motion de novo. United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990).

Gruszie contends in his motion that the prison is not correctly executing his sentence. However, the district court is without jurisdiction to reach the merits of this claim under a Sec. 2255 proceeding. Ridenour v. United States, 446 F.2d 57 (9th Cir. 1971) (denying relief under 28 U.S.C. § 2255 where the purpose of the motion was to attack the manner of execution of his sentence.) A motion pursuant to Sec. 2241 is the proper forum for this claim. United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984).

Gruszie next claims ineffective assistance of counsel because his counsel failed to request transcripts. In order to prove ineffective assistance of counsel Gruszie must show: (a) that his attorney's performance was outside the wide range of reasonable professional assistance; and (b) that such deficient performance prejudiced Gruszie, in that there is a reasonable probability--a probability sufficient to undermine confidence in the outcome--that but for the attorney's errors the results of the proceedings would have been different. See United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). Here, Gruszie has made conclusory allegations but has alleged nothing that indicates that a transcript would change the outcome of the proceedings.

Because Gruszie did not appeal his Rule 11 claim on direct appeal, he must establish that any error was a fundamental defect which inherently results in a complete miscarriage of justice or a violation of due process. United States v. Timmreck, 441 U.S. 780, 783-85 (1979). Here Gruszie does not do that.

We affirm the lower court's denial of the Sec. 2255 motion to vacate sentence.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth 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 Ninth Cir.R. 36-3