United States of America, Plaintiff-appellee, v. Eugene Szymanski, Defendant-appellant, 954 F.2d 725 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 954 F.2d 725 (6th Cir. 1992) Feb. 6, 1992

Before MERRITT, Chief Judge, and NATHANIEL R. JONES and BATCHELDER, Circuit Judges.


ORDER

Eugene Szymanski is a pro se federal prisoner who appeals the denial of a motion to vacate his sentence under 28 U.S.C. § 2255. The case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed in this case. Fed. R. App. P. 34(a).

Szymanski was convicted of conspiracy to distribute heroin and distribution of heroin in 1987. 21 U.S.C. §§ 841(a) and 846. He is now serving a term of 15 years imprisonment as a result of these convictions.

Szymanski argues that he had obtained new evidence which showed that his trial counsel was ineffective. On July 3, 1991, the district court dismissed his motion as successive under Rule 9(b) of the Rules Governing Section 2255 Proceedings. It is from this judgment that Szymanski now appeals. The appellee has filed a motion to dismiss the appeal for lack of jurisdiction.

Upon review, we conclude that Szymanski's motion was properly dismissed. The dismissal of a § 2255 motion under Rule 9(b) is reviewed under an abuse of discretion standard. Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert. denied, 474 U.S. 831 (1985). The district court may dismiss a second or successive petition under Rule 9(b), if a prior determination has already been made on the merits and if the petitioner fails to allege any new grounds for relief. Szymanski's allegation that his attorney was recently convicted of drug-related charges is disturbing. However, this factual assertion is not sufficient to raise a new or different ground for review. Lonberger v. Marshall, 808 F.2d 1169, 1173-74 (6th Cir.), cert. denied, 481 U.S. 1055 (1987). After conducting an evidentiary hearing, the district court had previously determined that counsel's performance was not deficient at Szymanski's trial. That determination was affirmed by our own court on appeal. United States v. Szymanski, No. 89-1817 (6th Cir. Feb. 1, 1990) (unpublished). Therefore, the district court did not abuse its discretion in dismissing Szymanski's present motion under Rule 9(b).

Accordingly, the appellee's motion to dismiss for lack of jurisdiction is denied and the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.