Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.michael Ricci, Appellant, v. United States of America, Appellee, 26 F.3d 127 (8th Cir. 1994)

In 1989, Michael Ricci filed a motion under 28 U.S.C. § 2255 that raised twenty-four grounds for relief from his 1986 conviction for possession of cocaine with intent to distribute. 21 U.S.C. § 841(a) (1). Among the grounds for relief was the claim that the failure to resolve contested matters in Ricci's presentence investigation report resulted in an enhancement of his salient factor score and category. Shortly before the hearing that was to be held on the petition, Ricci entered into a written agreement with the government that provided that if Ricci dismissed the petition a revised presentence report would be prepared as requested in the petition. The district court approved the agreement and dismissed the petition. In February 1991, Ricci filed another section 2255 petition, which the district court dismissed as a successive petition. Ricci appealed, and we remanded the case to the district court for a determination whether Ricci's agreement to dismiss his initial petition constituted a waiver of his right to thereafter request relief on any of the dismissed claims.

On remand, a United States Magistrate Judge¹  conducted an evidentiary hearing and submitted a report recommending that the district court find that Ricci had in fact waived his right to request relief on any of the dismissed claims. The district court²  adopted the recommendation and certified its findings to us in accordance with our remand order.

Having reviewed the record, we conclude that the district court's finding is not clearly erroneous. Accordingly, the district court's September 12, 1991, order dismissing the petition is affirmed.

The court expresses its appreciation to appointed counsel for his efforts in Ricci's behalf.