NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RICHARD JAMES PULLEY, Jr., AKA Khaliq Ali Abdul As Salaam ,

Defendant-Appellant. No. 17-10150 D.C. No. 2:05-cr-00368-JAM-1
MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Raul A. Ram irez, District Judge, Presiding Subm itted August 17, 2018 * * San Francisco, California Before: BEA and CHRISTEN, Circuit Judges, and McLAUGHLIN, * * * District Judge. 

# FILED
AUG 31 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. See Fed. R. App. P. 34(a)(2).

* * * The Honorable Mary A. McLaughlin, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.Richard Jam es Pulley appeals his conviction, by conditional guilty plea on

rem and from this Court, for unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In a prior appeal, this Court reversed Pulley’s conviction on the basis that he was denied his Sixth Am e ndm ent right of self-representation and
rem anded for a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm
. First, the district court did not err in denying Pulley’s second m otion to dism iss the indictm ent under the Speedy Trial Act. Pulley has waived the issue whether the district court erred by not reaching the m erits of the Speedy Trial Act
m otion by failing to raise this issue in his opening appellate brief. The district court did not reach the m erits of Pulley’s second m otion to dism iss under the Speedy Trial Act in its May 3, 2016 order, instead finding that Pulley had waived such argum e nts by not presenting them in his initial appeal. In his opening brief, Pulley does not identify any error in that holding. See United States v. Kama , 394 F.3d 1236, 1238 (9th Cir. 2005) (“[A] n issue is waived when the appellant does not specifically and distinctly argue the issue in his . . . opening brief.”). Rather, Pulley addresses the m e rits of the Speedy Trial Act argum e nt, which were not addressed by the court below.

2Moreover, Pulley could have raised his argum e nts regarding the factual

bases of the district court’s denial of his m otion to dism iss in his first Speedy Trial Act m otion or his first appeal, but failed to do so. Before the first trial, Pulley
m oved to dism iss the indictm ent on the theory that the failure of the court to articulate explicitly an ends-of-justice finding was fatal to the effective exclusion of tim e under the Speedy Trial Act. His initial m otion did not challenge the factual bases underlying the exclusions of tim e. The district court and this Court rejected Pulley’s Speedy Trial Act argum ents on the m erits, and this Court specifically noted Pulley' s failure to challenge the factual bases in question. Because Pulley did not challenge the factual bases underlying the exclusions of tim e prior to his first trial or during the first appeal, he cannot do so in the present appeal. See United States v. Nagra , 147 F.3d 875, 882 (9th Cir. 1998) (“When a party could have raised an issue in a prior appeal but did not, a court later hearing the sam e case need not consider the m atter.”). Second, in the plea agreem ent, Pulley waived appeal of the ineffective assistance of counsel claim that defense counsel failed to challenge the underlying factual bases in the original m otion to dism iss under the Speedy Trial Act. The plea agreem e nt states that “this Agreem e nt constitutes a com plete waiver of all appellate rights, except for the single issue described in Section II.B [the May 3,
32016 denial of his m otion to dism iss the indictm e nt pursuant to the Speedy Trial

Act] .” Accordingly, Pulley’s waiver preserved only two issues on which he could potentially argue ineffective assistance of counsel: (1) ineffective assistance that occurred on rem and leading up to the May 3, 2016 denial of his Speedy Trial Act
m otion, or (2) ineffective assistance affecting the voluntariness of the waiver itself. United States v. Nunez , 223 F.3d 956, 959 (9th Cir. 2000) (holding that where waiver includes right to appeal sentence, it also waives right to argue ineffective assistance during sentencing); Washington v. Lampert , 422 F.3d 864, 871 (9th Cir. 2005) (a waiver of appellate rights is unenforceable with respect to ineffective assistance of counsel claim s challenging the voluntariness of the waiver itself). The plea agreem ent did not preserve Pulley’s ability to argue that previous trial and appellate counsel (those not involved in litigating the May 3, 2016 denial of his speedy trial m otion or in advising him on entry into the appellate waiver) were ineffective. Pulley’s m otion requesting that we take judicial notice of General Order No. 479 of the United States District Court for the Eastern District of California is granted. See Fed. R. Evid. 201(b); United States v. Black , 482 F.3d 1035, 1041 (9th Cir. 2007). AFFIRMED
.
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