William A. Reinke, Petitioner-appellant, v. United States of America, Respondent-appellee, 990 F.2d 1259 (9th Cir. 1993)

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U.S. Court of Appeals for the Ninth Circuit - 990 F.2d 1259 (9th Cir. 1993)

Submitted March 23, 1993. *Decided April 5, 1993


Before WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges.


MEMORANDUM** 

William A. Reinke appeals pro se the district court's denial of his fifth pro se motion pursuant to 28 U.S.C. § 2255. The district found the motion to be without merit. We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.

On 24 February 1986, the United States Attorney for the Central District of California filed an information against Reinke alleging two counts of mail fraud in violation of 18 U.S.C. § 1341. The information alleged that Reinke was employed by the Northrop Corporation (Northrop) as an engineering specialist. Reinke's alleged responsibilities included the design and development of equipment used in the United States Air Force Stealth Program. Reinke was alleged to have formed his own company called "RF Engineering, Inc." Reinke allegedly caused Northrop to issue subcontracts to RF Engineering. Pursuant to those contracts, RF Engineering allegedly supplied products to Northrop at inflated prices.

On 19 March 1986, Reinke, with the assistance of counsel, pleaded guilty to both counts of the information. On 11 August 1986, Reinke was sentenced to five years of incarceration on count one and five years of supervised release on count two and ordered to pay $144,000 in restitution. Reinke surrendered to the custody of the Attorney General in September 1986.

On 8 December 1986, while still represented by counsel, Reinke filed a motion pursuant to Federal Rule of Criminal Procedure 35 for reduction and modification of his sentence. Reinke sought a reduction of the period of his incarceration and the deletion of the restitution order. On 23 July 1987, the district court granted Reinke's motion in part and reduced his term of incarceration to two years. On 2 December 1988, the district court deleted the restitution order portion of Reinke's sentence.

Meanwhile, Reinke filed his first of five pro se motions pursuant to 28 U.S.C. § 2255.1  On 31 July 1987, Reinke filed his first post-conviction motion in the Central District of California in the form of an amended motion pursuant to section 2255.2  Reinke listed eight grounds for relief. The district court categorized the grounds into five separate attacks on the legality of his sentence: (1) Reinke's right to allocution was frustrated because he was not allowed to present information before the court; (2) the United States Air Force intimidated defense counsel thereby impinging on Reinke's sixth amendment right to counsel; (3) the government threatened Reinke; (4) the district court engaged in "self-dealing" by considering the public's perception of the case rather than justice; and (5) the government failed to show a loss on the part of the victim, a prerequisite for a valid conviction for mail fraud under 18 U.S.C. § 1341.

On 2 September 1987, Reinke filed his second pro se post-conviction motion in the Central District of California in the form of a motion pursuant to section 2255.3  Reinke's second section 2255 motion appears to have been identical to his first section 2255 motion. On 27 October 1987, the district court filed an order summarily dismissing Reinke's second section 2255 motion.

On 9 November 1987, the district court entered an order denying on the merits Reinke's first section 2255 motion. The district court determined that the district court record contained no factual foundation for Reinke's first, second, third, or fourth grounds for relief. On the fifth ground, the district court found that " [t]he evidence presented both at trial and at defendant's sentencing indicate that the government satisfied its burden with respect to the factual element necessary under 18 U.S.C. § 1341."

On 23 March 1990, following oral argument, this court affirmed the district court's order denying Reinke's section 2255 motions.4  Reinke v. United States, No. 87-6688, unpublished memorandum disposition (9th Cir. Mar. 23, 1990). On Reinke's first four claims, this court found "no support in the record" for these claims and affirmed the district court's judgment. Id. at 4. On the fifth ground, this court found that "the information, guilty plea, and Reinke's own written and oral statements" provided "a sufficient factual basis for the sentence." Id. at 7.

On 11 July 1990, Reinke filed his third pro se post-conviction motion in the Central District of California in the form of a motion pursuant to section 2255.5  Reinke argued that his guilty plea was defective because of the following issues relating to the restitution order: (1) he was not advised that restitution was a possible consequence of his plea; (2) although the court later deleted the restitution order from his sentence, the order was pending for three years and caused injury to him during that time; (3) the restitution order erroneously directed defendant to pay restitution to "the government"; (4) Reinke allegedly settled his civil action with Northrop without being required to pay damages, which according to Reinke demonstrated that Northrop was entitled to no restitution; and (5) at one point during a sentencing hearing, the court remarked that it did not know the law on a particular point. In addition, Reinke argued, once again, that his conviction was flawed because the court lacked a factual basis for finding that he overcharged Northrop.

In a written order dated 11 September 1990, the district court denied Reinke's third section 2255 motion finding that, "as a matter of law, the error [Reinke] claims does not constitute a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair practice."

On 15 October 1990, Reinke filed a motion for reconsideration of the court's 11 September 1990 order. Reinke reiterated his original arguments and argued that the case relied on by the government was decided after his sentencing date and, therefore, inapplicable. In a written order dated 5 December 1990, the district court denied Reinke's motion for reconsideration.6 

On 28 January 1991, Reinke filed his fourth pro se post-conviction motion in the Central District of California in the form of a motion pursuant to 28 U.S.C. § 2255.7  Reinke claimed that (1) he was prevented from presenting exculpatory classified information; (2) the United States Air Force violated his constitutional rights by threatening him; and (3) the district court mishandled certain classified documents. Reinke also requested the appointment of counsel and time for discovery.

On 17 April 1991, the district court found Reinke's claims were successive. The district court also determined "that no manifest injustice would result from denying Reinke's request to revisit [these] same issues now." The district court denied Reinke's request for counsel and time for discovery.

On 16 May 1991, Reinke filed a motion for reconsideration of the court's 17 April 1991 order. Reinke merely reiterated his original arguments. In a written order filed on 21 June 1991, the district court denied Reinke's motion for reconsideration. The district court warned Reinke that " [t]he filing of any further motions that allege claims substantially similar to those under review here will subject Mr. Reinke to sanctions."8 

Despite the district court's warning, on 27 April 1992, Reinke filed his fifth pro se motion in the Central District of California in the form of a motion pursuant to 28 U.S.C. § 2255.9  Reinke reiterated claims raised in his previous section 2255 motions. Specifically, he argued that the district court's handling of classified information violated the Classified Information Procedure Act, 18 U.S.C.App IV, § 2.

On 7 May 1992, the district court found "no merit in [Reinke's] contentions" and denied Reinke's fifth section 2255 motion.

Sentencing courts "shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." 28 U.S.C. § 2255. "A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits." Rule 9, Rules Governing Section 2255 Proceedings. A prior determination of a ground presented in an earlier motion is controlling where the ends of justice would not be served by reaching the merits of the subsequent motion. Sanders v. United States, 373 U.S. 1, 16-17 (1963); Molina v. Rison, 886 F.2d 1124, 1127 (9th Cir. 1989).

We find that Reinke's claim that the district court's handling of classified information violated the Classified Information Procedure Act is merely variation on his original claim that the court failed to consider exculpatory evidence. Therefore, to the extent Reinke attacks the district court's denial of his request to use classified information, we find that it is a successive ground. See Sanders, 373 U.S. at 16-17; Molina, 886 F.2d at 1129 (despite the similarity or differences in the factual context of the claim, a ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments).

Reinke's fifth section 2255 motion and the district court files and records conclusively show the motion to be without merit. We note that the district court has denied Reinke's four previous section 2255 motions and this court has affirmed each and every denial of relief.10  Therefore, we determine that the ends of justice would not be served by reaching the merits of this successive section 2255 motion. See Chua Han Mow v. United States, 730 F.2d 1308, 1310 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985).

Accordingly, the district court's denial of Reinke's fifth section 2255 motion is affirmed.11 

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Reinke's request for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Reinke originally filed a motion pursuant to 28 U.S.C. § 2241 in the Northern District of Texas. The court construed the motion as a request for relief under 28 U.S.C. § 2255 and transferred the case to the sentencing court

 2

Reinke's first amended motion was filed under district court number CV-87-4167-SVW

 3

Reinke's second motion was filed under district court number CV-87-5826-SVW

 4

Reinke's appeal was filed under court number 87-6688. This appeal affirmed Reinke's first motion (CV-87-5826-SVW) and his second motion (CV-87-5826-SVW)

 5

Reinke's third motion was filed under district court number CV-90-3605-SVW

 6

Reinke's appeal in this case was filed in this court under docket number 91-55418

 7

Reinke's fourth motion was filed under district court number CV-87-4167-SVW. We note that this is the same docket number as Reinke's first section 2255 motion

 8

Reinke's appeal in this case was filed in this court under docket number 91-55821

 9

Reinke's fourth motion was filed under district court number CV-87-5826-SVW. We note that this is the same docket number as Reinke's second section 2255 motion

 10

This court affirmed the district court's denial of Reinke's motion for reconsideration in his third section 2255 motion, CV-90-3605-SVW. Reinke v. United States, No. 91-55418, unpublished memorandum disposition (9th Cir. ----, 1993)

This court affirmed the district court's denial of Reinke's fourth section 2255 motion, CV-87-4167-SVW. Reinke v. United States, No. 91-554821, unpublished memorandum disposition (9th Cir. ----, 1993).

 11

On 19 January 1993, Reinke filed a motion with this court requesting that (1) his three appeals be heard by different panels, and (2) a prehearing conference be held. This motion is without merit and, therefore, is denied