42 F.3d 1404
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Petitioner-Appellee,
v.
Anthony John SPOSATO, Respondent-Appellant.
No. 94-55465.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 4, 1994.*
Decided Oct. 11, 1994.
Before: BROWNING, FARRIS, and LEAVY, Circuit Judges.
MEMORANDUM**
Anthony Sposato, a federal prisoner, appeals pro se the district court's summary dismissal of his second 28 U.S.C. Sec. 2255 motion to vacate his 121-month sentence imposed following his conviction for distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. Sec. 2255. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir.1990), and affirm.1
In the instant Sec. 2255 motion, Sposato contends that he was denied the effective assistance of trial counsel because his attorney did not argue that he was incapable of producing the negotiated amount of cocaine. Sposato previously raised the issue of ineffective assistance of counsel in his first Sec. 2255 motion. Thus we decline to consider it. See Walter v. United States, 969 F.2d 814, 816 (9th Cir.1992) (when a federal prisoner presents a claim in a Sec. 2255 motion that he has presented previously the court has the discretion to refuse to consider the claim on the ground that he is abusing the writ).
Sposato also contends that the trial court erred in failing to make explicit findings that Sposato intended to and was capable of producing the negotiated amount of cocaine pursuant to a 1992 amendment of the sentencing guidelines, Sec. 2D1.1. Sposato failed to raise this issue in his section 2255 motion, and he may not raise it for the first time here. See United States v. Keller, 902 F.2d 1391, 1395 (9th Cir.1990).
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Sposato's motion for an extension of time to file a reply brief is denied