United States of America, Plaintiff-appellee, v. David Lee Alexander, Defendant-appellant, 112 F.3d 517 (9th Cir. 1997)

MEMORANDUM^** 

David Lee Alexander, a federal prisoner, appeals pro se the denial of his third 28 U.S.C. § 2255 motion challenging his 1982 guilty plea conviction of bank robbery in violation of 18 U.S.C. § 2113(a). Alexander contends that his plea was involuntary; he was denied counsel during critical stages of the case; he received ineffective assistance of counsel; and, he was denied the right to a speedy trial.¹  We have jurisdiction pursuant to 28 U.S.C. § 2255. We review for abuse of discretion when the district court denies consideration of the merits of a petition on grounds that it is successive or abusive. See Campbell v. Blodgett, 997 F.2d 512, 516 (9th Cir. 1993).

Under the rules governing section 2255 motions, a 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 or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules. Rule 9(b) 28 U.S.C. foll. § 2255.

Here, Alexander's speedy trial claim was resolved on the merits in a previous petition. See United States v. Alexander, No. CR-S-057-PMP (D. Nev. July 15, 1993) (order). Accordingly it is successive. See See Rule 9(b) 28 U.S.C. foll. § 2255; Sanders v. United States, 373 U.S. 1, 15-16 (1962); Molina v. Rison, 886 F.2d 1124, 1127 (9th Cir. 1989).

Alexander's remaining claims constitute an abuse of the writ, because he failed to show or even allege cause for not raising his claims in his earlier habeas petitions²  or that a fundamental miscarriage of justice would result from failing to address his claims. See Rule 9(b) 28 U.S.C. foll. § 2255; cf. McClesky v. Zant, 499 U.S. 467, 493-94 (1991). Accordingly, the district court did not abuse its discretion by denying Alexander's third section 2255 motion. See Campbell, 997 F.2d at 516. All Alexander's remaining contentions lack merit.

AFFIRMED.