United States of America, Plaintiff-appellee, v. Franklin Andres Uceta, Defendant-appellant, 943 F.2d 58 (10th Cir. 1991)

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U.S. Court of Appeals for the Tenth Circuit - 943 F.2d 58 (10th Cir. 1991)

Sept. 3, 1991

Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges.


JOHN P. MOORE, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

This is an appeal from an order denying a motion for release under 28 U.S.C. § 2255. Franklin Andres Uceta urges his conviction should be set aside because he was denied effective representation by counsel at his trial. In the district court he based his contention on four premises not argued in this court. On appeal, he contends his counsel was ineffective because he failed to subpoena a "critical witness."1  We will not consider an issue not presented to the trial court and raised for the first time on appeal. Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir. 1989). Because Mr. Uceta makes no other argument, we have independently examined the issues he raised in his § 2255 petition. After consideration of those issues, and the government's answer brief, we conclude the district court did not err in dismissing the petition. The judgment of the district court is AFFIRMED.


This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3


The issues were presented to the district court by Mr. Uceta in a memorandum of law filed September 24, 1990. Because that document was not contained in the record, we ordered it delivered to us under 10th Cir.R. 10.2.4. Our examination of that document confirms Mr. Uceta raised different issues in the district than the one on appeal