Opinion
Argued and Submitted February 12, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Drug distribution defendant moved to vacate guilty plea. The United States District Court for the District of Montana, Paul G. Hatfield, J., dismissed, and appeal was taken. The Court of Appeals held that second motion to vacate did not meet statutory standards for such motions, and thus was properly dismissed.
Affirmed
Page 414.
Appeal from the United States District Court for the District of Montana, Paul G. Hatfield, District Judge, Presiding.
Before REINHARDT, WARDLAW, and GOULD, Circuit Judges.
This disposition is inappropriate 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.
William Harvey appeals the dismissal of his second motion under 28 U.S.C. § 2255. We affirm.
Harvey seeks to vacate his plea of guilty to three counts of distribution of methamphetamine on the ground that, but for the government's suppression of exculpatory evidence and his counsel's ineffectiveness, he would have exercised his right to go to trial. Although Harvey's successive motion was certified by a panel of this court, the district court was correct in conducting its own review to determine whether the motion met the statutory requirements for the filing of a successive motion. See United States v. Villa-Gonzalez, 208 F.3d 1160, 1164-65 (9th Cir.2000). It was also correct in concluding that Harvey's motion did not meet the stringent requirements of 28 U.S.C. § 2255. Virtually all of Harvey's newly discovered evidence pertained only to charges that were dismissed pursuant to his plea agreement, and not to the three crimes to which he pleaded guilty. The only new evidence that potentially related to the crimes to which Harvey pleaded guilty involved the government's alleged suppression of an informal immunity agreement with an informant who would have provided trial testimony against Harvey. However, Harvey has not shown by clear and convincing evidence that, had a trial occurred and had he impeached the government's witness with evidence of his informant status, no rational juror would have found him guilty of the offenses. Accordingly, the district court did not err in dismissing his petition. Thus, we do not consider the merits of Harvey's claims.
AFFIRMED.