The Honorable Jean C. Hamilton, Chief Judge, United States

1

District Court for the Eastern District of Missouri.

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No. 95-1954

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Ralph Ausba Wynn, *

 *

Appellant, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Missouri.

United States of America, *

 * [UNPUBLISHED]

Appellee. *

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 Submitted: December 22, 1995

 Filed: December 29, 1995

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Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Ralph Ausba Wynn was convicted of bank robbery and sentenced to

fifty-one months imprisonment. He filed this 28 U.S.C. § 2255 motion,

citing numerous instances of ineffective assistance of counsel, and

asserting that the six-month delay between his arrest and indictment

violated the Speedy Trial Act, 18 U.S.C § 3161(b). The district court1

denied relief, and we affirm. 

As a preliminary matter, we note that since the filing of his section

2255 motion, Wynn has been released from custody. Nevertheless, his appeal

is not moot because he was in custody when he filed his motion, and his

conviction could have collateral
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consequences in the future. See Clemmons v. United States, 721 F.2d 235,

237 n.3 (8th Cir. 1983). 

As to Wynn's ineffective-assistance claims, first, we see no merit

to his contention that counsel was ineffective for failing to pursue a

diminished capacity defense, as a court-ordered psychiatric examination

revealed that Wynn was mentally competent at the time of the offense. See

Mathenia v. Delo, 975 F.2d 444, 448 (8th Cir. 1992), cert. denied, 113 S.

Ct. 1609 (1993). We reject Wynn's attempt to supplement the record with

regard to this claim. See Dakota Indus., Inc. v. Dakota Sportswear, Inc.,

988 F.2d 61, 63 (8th Cir. 1993). Second, Wynn's assertion that counsel

performed deficiently in failing to make certain evidentiary objections is

likewise without merit, as there was no basis for making such objections.

See Anderson v. Goeke, 44 F.3d 675, 680 (8th Cir. 1995). Third, in light

of the strong evidence against Wynn--which included photographs of him from

the bank's security cameras and identification by two eyewitnesses--counsel

was not ineffective in conceding that Wynn took the money, and arguing that

he was guilty of only the lesser included offense of bank larceny. See

Dokes v. Lockhart, 992 F.2d 833, 836 (8th Cir. 1993), cert. denied, 115 S.

Ct. 437 (1994). Fourth, the mere fact that Wynn's counsel subsequently

went to work for the United States Attorney's Office does not demonstrate

that "`an actual conflict of interest adversely affected his . . .

performance.'" Strickland v. Washington, 466 U.S. 668, 692 (1984) (quoted

case omitted). 

Wynn's claim concerning the delay between his arrest and indictment

is not cognizable in a section 2255 motion. See Monteer v. Benson, 574

F.2d 447, 449 (8th Cir. 1978). Finally, we do not address his claim,

raised for the first time on appeal, that he was not tried by a jury of his

peers. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir. 1993),

cert. denied, 114 S. Ct. 887 (1994). 

Accordingly, we affirm.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.