United States of America, Plaintiff-appellee, v. Joy Jimmy Neal, Defendant-appellant, 968 F.2d 22 (10th Cir. 1992)Annotate this Case
Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.
ORDER AND JUDGMENT*
BRORBY, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in 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.
Mr. Neal, a federal inmate, appeals the denial of relief upon his motion filed pursuant to 28 U.S.C. § 2255. We affirm the judgment of the district court.
Mr. Neal was convicted of three federal felonies in 1980. This conviction was affirmed by this court. See United States v. Neal, 692 F.2d 1296 (10th Cir. 1982). In 1984 Mr. Neal filed his first motion pursuant to 28 U.S.C. § 2255. This motion was decided adversely to Mr. Neal as it involved the same issues set forth in the direct appeal. Mr. Neal appealed to this court and his appeal was dismissed as it was not timely.
Mr. Neal, in 1991, filed his second § 2255 action which is the matter now before this court. In his pro se complaint, Mr. Neal asserted ineffective assistance of one of his two trial counsel and that the charges against him were based upon fraudulent statements given by three persons, two of which testified at trial.
The matter was referred to the magistrate judge who issued a comprehensive 15 page Report and Recommendation which concluded: (1) trial counsel's performance was not substandard; and (2) Mr. Neal failed to show sufficient facts to warrant a hearing into the use of perjured testimony as nothing more than conclusory allegations were set forth.
The trial court reviewed the matter de novo and considered Mr. Neal's objections to the magistrate's report and in a commendably thorough nine-page Order accepted and adopted the magistrate's Report and Recommendation.1
Mr. Neal appeals pro se raising essentially the same issues. He fails to inform us of any reason tending to show the district court's judgment was in error. Instead, Mr. Neal contents himself with conclusory factual allegations.
It serves no purpose to reiterate the facts and law as set forth by the magistrate judge and the district court. Both documents are thorough and well supported. Mr. Neal has failed to persuade this court any error exists.
The judgment of the district court is AFFIRMED for substantially the same reasons advanced by the district court in its' Order of September 26, 1991, and the Report and Recommendation of the magistrate judge dated July 30, 1991, copies of both being attached.
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 government never raised the issues of delayed, successive or abusive motions pursuant to Rule 9, Rules Governing Section 2255 Proceedings in the United States District Courts. We suggest the government should consider the possibility of routinely delving into this issue for the benefit of the court when it responds to a second or subsequent § 2255 motion