Unpublished Disposition, 879 F.2d 866 (9th Cir. 1989)

MEMORANDUM^** 

Kevin Aubrey Seltenrich, proceeding pro se and in forma pauperis, appeals the district court's summary denial of his pro se section 2255 motion. Seltenrich claims that 1) the government violated due process by expelling him from a drug treatment program under the Narcotics Addicts Rehabilitation Act of 1966, 28 U.S.C. §§ 2901-2906, (NARA) in 1969; 2) expulsion from the program was improperly considered in his subsequent convictions and sentences; and 3) he received ineffective assistance of counsel in connection with the 1969 proceedings. We affirm.

A district court's decision regarding a section 2255 motion is reviewed de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir. 1986). A district court may deny a section 2255 motion without an evidentiary hearing if the motion, files, and records of the case conclusively show that the prisoner is not entitled to relief. Id. at 715.

Seltenrich contends he is entitled to section 2255 relief because the government expelled him from the treatment program and never resumed prosecution. He claims that his subsequent crimes were the result of the government's failure to either treat or convict him in the 1969 proceeding.

A district court may, without a hearing, deny a section 2255 motion as successive if 1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application; 2) the prior determination was on the merits; and 3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. 1, 15 (1963); Richmond v. Ricketts, 774 F.2d 957, 960 (9th Cir. 1985). A plurality of the Supreme Court has held that the "ends of justice" test can only be satisfied by a colorable showing of factual innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986). For this court to affirm a dismissal or denial on the ground of successiveness, the district court must either make a specific finding that the ends of justice would not be served by reaching the merits or its view on this point must be clear from the record. Chard v. United States, 578 F.2d 1317, 1318 (9th Cir. 1978).

In 1986 Seltenrich filed an in forma pauperis complaint under 42 U.S.C. § 1983 which was treated as a petition for a writ of habeas corpus alleging the same constitutional violations as in his present petition. The district court held that "a narcotics addict, voluntarily committed, does not have a fundamental right to rehabilitation at public expense," citing Marshall v. Parker, 470 F.2d 34, 38 (9th Cir. 1972), aff'd 414 U.S. 417 (1973). Seltenrich's same claim was also dismissed on the merits in a 1985 petition for a writ of coram nobis on the ground that his claim was "fraught with causation problems ... [and] fails to state a claim which would justify collateral treatment by this court."

Accordingly, dismissal of the motion as successive was appropriate. Seltenrich did not contend, before the district court or on appeal, that he did not commit the offenses involved. Kuhlman, 477 U.S. at 454. As an additional ground for affirmance, we note that the motions, files, and records in the case conclusively show the motion to be without merit. Sanders, 373 U.S. at 15; Chua Han Mow v. United States, 730 F.2d 1308, 1310 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985). Seltenrich's basic premise, that he was entitled to treatment under the NARA, is contrary to established law. Marshall, 470 F.2d at 38 (a narcotics addict voluntarily committed does not have a fundamental right to rehabilitation at public expense).

Seltenrich contends the 1969 proceedings were improperly considered in his subsequent convictions and sentences. Seltenrich has not raised this argument before the courts that sentenced him on convictions subsequent to the NARA expulsion, nor has he shown that he could not do so. Only the sentencing court has jurisdiction over a section 2255 motion. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493-501 (1973); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980); Gano v. United States, 705 F.2d 1136, 1137 (9th Cir. 1983). Accordingly, this court has no jurisdiction over his claim. In addition, Seltenrich's claim that his expulsion from treatment was improperly considered in his subsequent convictions and sentences is meaningless because he had no right to treatment under the NARA. Marshall, 470 F.2d at 38.

Seltenrich claims that he received ineffective assistance of counsel when the attorney who represented him in the 1969 robbery charge failed to pursue that charge to dismissal or final judgment after Seltenrich's expulsion from treatment.

The right to effective counsel is violated when counsel fails to meet a minimum level of competence and that failure results in prejudice to petitioner. Strickland v. Washington, 466 U.S. 668, 687-691 (1984). The NARA, 28 U.S.C. § 2902(c), requires that the court take the action of terminating the commitment when such action is recommended and dismiss the charges or allow the prosecution to go forward. The NARA does not mandate a minimum period of treatment. Marshall, 470 F.2d at 38. Accordingly, Seltenrich's counsel had no duty to attempt to prevent expulsion of Seltenrich from the NARA program. Counsel could have attempted to have the government either resume prosecution or drop charges, but there is no basis for concluding that such efforts would have been successful or that Seltenrich would have benefited if they had succeeded.

AFFIRMED.