United States of America, Plaintiff-appellee, v. Richard O. Kelly, Sr., Defendant-appellant, 110 F.3d 71 (9th Cir. 1997)

MEMORANDUM^** 

Richard O. Kelly, Sr., a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion challenging his 1992 guilty plea conviction and sentence for three counts of mail fraud and one count of wire fraud in connection with a scheme to sell worthless precious metals investments through false and misleading representations and promises. Kelly claims ineffective assistance of appellate counsel arising from the failure of his counsel to raise the claim that the trial court did not inform Kelly of the nature of the charge to which he was pleading.

This panel has previously affirmed Kelly's conviction and the denial of an earlier § 2255 petition. We once again affirm.

We agree with the district court that to the extent Kelly is attempting to assert once more his claim that the district court failed to comply with F.R.C.P. 11(c) (1), the petition is barred as successive; to the extent it may be deemed in some way to differ from the earlier claim, there has been no showing of cause for the failure to file it earlier, and no foundation for the present claim other than vexatious motive. It is thus abusive as well. See McCleskey v. Zant, 499 U.S. 467 (1991).

The district court also correctly recognized that Kelly's assertions of ineffectiveness of appellate counsel are contrary to the position he has taken with respect to his continuing representation by the same counsel. Finally, on the merits, the district court correctly ruled Kelly was adequately advised at his plea hearing.

AFFIRMED.