Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
D.C. Nos. CV-95-00394-OMP, CR-91-00127-OMP
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Oregon, Owen M. Panner, District Judge, Presiding.
Before FERGUSON, RYMER, and HAWKINS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Federal prisoner Troy Duane Tribby appeals pro se the district court's denial of his pre-AEDPA 28 U.S.C. § 2255 motion to vacate his 180 month sentence, following his jury trial conviction for being an ex-felon in possession of a firearm, in violation of 18 U.S .C. § 922(g)(1). We review de novo the district court's denial of a section 2255 motion, while we review its findings of fact for clear error. See Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir.1995). We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.
Tribby contends that the prosecution violated discovery rules by producing his inculpatory statements a week before trial. Tribby raised this issue in his direct appeal, and we rejected it on the merits. See United States v. Tribby, No. 92-30011, 1993 WL 77242, at *1 (9th Cir.1993) (unpublished memorandum). This issue cannot be raised again in a § 2255 motion. See United States v. Redd, 759 F.2d 699, 701 (9th Cir.1985) (per curiam).
Tribby contends that an ATF agent coerced witnesses to wrongfully identify ownership of the firearm in Tribby's possession by telling them it was being investigated in a homicide. Even if Tribby's allegations were true, the witness' supposedly false testimony about ownership would not affect the fact that Tribby possessed the firearm. See United States v. Casterline, 103 F.3d 76, 79 (9th Cir.1996) (distinguishing between ownership and dominion and control). The district court therefore properly denied relief on this basis. See Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988) (per curiam) (habeas relief may be denied if motion and records show prisoner entitled to no relief).
Tribby's motion to supplement the record is denied. See United States v. Walker, 601 F.2d 1051, 1054-55 (9th Cir.1979) (affidavits not presented to the district court not considered on appeal).
Tribby contends that his counsel was ineffective because he did not accept the district court's offer of a continuance and failed to recognize and challenge conflicting testimony. The district court properly determined that it was a reasonable strategy for counsel to proceed with trial after weighing postponement of trial against defendant's pre-trial incarceration. See Gustave v. United States, 627 F.2d 901, 904 (9th Cir.1980) (mere criticism of trial tactic not sufficient to support charge of ineffective assistance of counsel). The record supports the district court's determination that defense counsel presented a capable defense which included vigorous cross-examination of the government's witnesses. See Shah v. United States, 878 F.2d 1156, 1159 (9th Cir.1989) (stating that the district court can rely on its own recollection and common sense in evaluating a 2255 claim). Tribby failed to show either deficient performance or prejudice. See Strickland v. Washington, 466 U.S. 668, 689-92 (1984).
Tribby expands his claims on appeal as to ineffective assistance of counsel by stating that (1) counsel was ineffective for not filing a motion to stay proceedings to familiarize himself with Tribby's case; (2) counsel was ineffective by relying on prior counsel's investigation and theory of defense; (3) counsel's errors cumulatively constituted ineffective assistance; (4) counsel committed perjury by submitting an allegedly false affidavit. We do not reach the merits of these contentions. See United States v. Keller, 902 F.2d 1391, 1395 (9th Cir.1990) (additional allegations of ineffective assistance of counsel not raised in section 2255 motion may not be raised for the first time on appeal).
Tribby raises for the first time in his reply brief his contention that he is not an armed career criminal. We do not consider the contention. See United States v. Puchi, 441 F.2d 697, 703 (9th Cir.1971). Construing his contention as a request for certification to file a successive section 2255 motion, we deny it. Tribby has not made the required prima facie showing under 28 U.S.C. § 2255. See United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.1997)(order) (denying request to file successive section 2255 based on new statutory interpretation).
Accordingly, the district court properly denied Tribby's 2255 motion.
AFFIRMED.