923 F2d 862 Martin v. United States

923 F.2d 862

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Argil Cooney MARTIN, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 88-15797.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1991.*
Decided Jan. 15, 1991.

Before SNEED, HUG and NOONAN, Circuit Judges.

1

MEMORANDUM**

2

Argil Cooney Martin appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2255 motion to vacate, set aside or correct his sentence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review the denial of a section 2255 motion de novo, United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1988), and affirm.

3

In his section 2255 motion presented to the district court, Martin raised the following grounds for relief: (1) ineffective assistance of counsel, stating 11 separate instances; (2) excessive sentence in violation of the eighth amendment; and (3) denial of his right to inspect the record of jurors concurring in the finding of the indictment. In his brief to this court, Martin claims that (1) he was denied due process of law by the use of perjured testimony, and (2) his counsel was ineffective for failing to show selective prosecution. Neither of these grounds were raised in Martin's section 2255 motion before the district court and thus, are raised for the first time on appeal. We will not "review an issue not raised below unless necessary to prevent manifest injustice." International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). Martin's claims require a detailed factual inquiry which should first be presented to the district court. No injustice will result in our refusal to entertain these newly raised issues because Martin may present them to the district court in new section 2255 motion. Thus, because Martin raises no error in the district court's ruling on the claims presented below, the judgment is

4

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition 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