United States of America, Plaintiff-appellee, v. James A. Patton, Defendant-appellant, 91 F.3d 157 (9th Cir. 1996)

MEMORANDUM^** 

James A. Patton appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. Patton contends that the district court erred by denying his § 2255 motion because: (1) the administrative forfeiture of his property and his criminal conviction constituted double punishment in violation of the Double Jeopardy Clause, and (2) counsel's failure to contest the administrative forfeiture constituted ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994). We affirm.

The forfeiture of property pursuant to 21 U.S.C. § 881 is neither punishment nor criminal for purposes of the Double Jeopardy Clause. United States v. Ursery, Nos. 95-345, 346 1996 WL 340815, at * 16 (U.S. June 24, 1996). Accordingly, Patton's double jeopardy claim fails. Furthermore, inasmuch as Patton's claim of ineffective assistance of counsel challenges the forfeiture and not his criminal conviction, such claim is not cognizable in a § 2255 motion. See 28 U.S.C. § 2255; United States v. Faber, 57 F.3d 873, 875 (9th Cir. 1995) (issues arising out of forfeiture proceeding not before court where petitioner failed to appeal civil forfeiture judgment).

Because we affirm the denial of relief under the former version of 28 U.S.C. § 2255, we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal.

AFFIRMED.