United States of America, Plaintiff-appellee, v. John H. Detar, M.d., Defendant-appellant, 979 F.2d 856 (9th Cir. 1992)

MEMORANDUM^** 

John H. DeTar, M.D., appeals pro se the denial of his second 28 U.S.C. § 2255 motion to vacate, set aside, or correct his conviction for willful failure to pay taxes, in violation of 26 U.S.C. § 7203. DeTar contends that his conviction is improper because willful failure to pay taxes is not a lesser included offense of the charged offense, tax evasion, in violation of 26 U.S.C. § 7201. We have jurisdiction under 28 U.S.C. § 2255. We review de novo, Doganiere v. United States, 914 F.2d 165, 167 (9th Cir. 1990), cert. denied, 111 S. Ct. 1398 (1991), and affirm.

We reversed DeTar's original conviction for tax evasion because the district court did not instruct the jury on the lesser included offense of willful failure to pay taxes. United States v. DeTar, 832 F.2d 1110 (9th Cir. 1987). Following a new trial, DeTar was convicted for willful failure to pay taxes. We subsequently affirmed the district court's denial of his first section 2255 motion, in which he claimed that separate jury instructions were required on the offense of willful failure to pay taxes because it is not a lesser included offense of tax evasion. United States v. DeTar, No. 89-15094, unpublished memorandum disposition (9th Cir. Dec. 3, 1990).

These previous holdings are law of the case as to DeTar's second section 2255 motion. See United States v. Layton, 855 F.2d 1388, 1403 (9th Cir. 1988) ("the panel hearing a second appeal in a single case will ordinarily refrain from reconsidering an issue adjudicated on the merits in the earlier appeal"), cert. denied, 489 U.S. 1046 (1989). Accordingly, we affirm the district court's order.

AFFIRMED.