141 F.3d 1180
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Kenneth Irvin COUNCE, Defendant-Appellant.
No. 97-55033.
D.C. Nos. CV-95-02148-RMT, CR-89-00438-RMT.
United States Court of Appeals,
Ninth Circuit.
.
Submitted March 10, 1998.**
Decided March 18, 1998.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Appeal from the United States District Court for the Central District of California Rogert M. Takasugi, District Judge, Presiding.
Before FLETCHER, BEEZER, and LEAVY, Circuit Judges.
MEMORANDUM*
Kenneth Irvin Counce, a California state prisoner, appeals pro se the district court's denial of his motion to stay appeal no. 95-55084, amend his § 2255 petition, and reconsider the dismissal of his § 2255 petition. We have jurisdiction pursuant to 28 U.S.C. § 2255.
In the standardized form for his § 2255 petition filed on April 4, 1995, Counce answered "yes" to the question whether he had filed previous petitions, applications or motions with respect to his conviction in federal court. Counce explained that the previous "petitions" were post-conviction motions filed prior to his direct criminal appeal and a 28 U.S.C. § 2241 petition filed prior to his § 2255 petition. The district court dismissed his April 4, 1995 petition as successive.
In his appeal from this dismissal (appeal no. 95-55084), this court denied Counce forma pauperis status and subsequently dismissed the appeal when Counce failed to pay the filing fee.
After this court issued the mandate, Counce filed a motion in the district court seeking to stay the appeal. The motion was filed in the wrong court and rendered moot by the issuance of the mandate.
In the same motion, Counce sought leave to amend his petition and requested reconsideration of the dismissal of the petition. The motion, filed after the mandate had issued in the appeal from the dismissal of his petition, did not allege any facts which were not available to him at the filing of his initial petition nor did it state any change in the relevant law. Accordingly, the district court did not err by denying Counce's motion to stay the appeal, amend his § 2255 petition, and reconsider the dismissal of his § 2255 petition.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Counce's request for oral argument is denied. We also reject Counce's objection to the extension of time granted to the United States to file their brief. Finally, we grant Counce's request to file additional excerpts of record with his reply brief and have reviewed those materials
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