Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1987)

MEMORANDUM^** 

* FACTS AND PROCEEDINGS

Petitioner Eduardo Garrido Ponce de Leon ("Garrido") appeals the dismissal of his motion filed in the district court in June 1986, pursuant to 28 U.S.C. § 2255. In this section 2255 motion, Garrido alleged various constitutional and statutory errors which he argues led to his conviction in February 1982 by a jury in federal district court on various cocaine-related charges. Garrido appealed from that conviction, as did his codefendants. We affirmed all of the convictions in United States v. Arbelaez, 719 F.2d 1453 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984).

Garrido's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 presented what a United States magistrate interpreted to be six separate claims. The magistrate concluded that the first four claims did not entitle Garrido to relief. The final two claims were interpreted as presenting a single claim of ineffective assistance of counsel. The allegations in support of this claim, however, were considered conclusory; as a result, the magistrate outlined the essential elements of such a claim under Strickland v. Washington, 466 U.S. 668 (1984), and "granted Garrido leave to file an amended motion with regard only to [the] claim of ineffective assistance of counsel."

Garrido responded by filing objections to the magistrate's "dismissal" of his first four claims.¹  In this document, Garrido set forth "amendments" to his original section 2255 motion. These amendments included additional allegations pertaining to Garrido's ineffective assistance of counsel claim. The magistrate ordered the government to respond to this claim. After the government responded, and without holding an evidentiary hearing, the magistrate concluded that Garrido was "not entitled to relief on any of the claims presented in his original motion or in his amended motion." The magistrate recommended that the motion be denied in its entirety. The district court adopted the magistrate's findings and recommendations in full and dismissed Garrido's motion. Garrido appeals from that dismissal. We have jurisdiction under 28 U.S.C. §§ 1291 and 2255. We affirm.

II

ANALYSIS

We address Garrido's claims as he organized them in his original petition, which organization was followed by the magistrate and district court.

Garrido is a Colombian whose primary language is Spanish. Following his arrest, he hired Susan Ianziti as an interpreter to assist in two meetings with his attorney which took place in the county jail. Ms. Ianziti worked a total of five hours, completing her services on May 27. On June 5, DEA agents hired Ianziti to translate taped conversations in which Garrido was a party. When the agents discovered that Ianziti had been employed by Garrido, her services were terminated immediately.

In his direct appeal, Garrido argued that when he learned that the DEA had employed Ianziti, he became suspicious of interpreters and thereafter could not talk freely with his counsel. He also contended that the government had obtained an unfair advantage by employing Ianziti, his former interpreter. Garrido's section 2255 motion presents these same arguments, although stated differently. He names another member of the firm of interpreters as the cause of the alleged wrongdoing by the government. The basis for this claim, however, is the same as that presented by Garrido's argument on this issue in his direct appeal.

Issues which have been raised on direct appeal and decided adversely to a petitioner are not reviewable in the petitioner's subsequent section 2255 proceeding, absent a showing of manifest injustice or a change in the law. See Polizzi v. United States, 550 F.2d 1133, 1135 (9th Cir. 1976); see also United States v. Currie, 589 F.2d 993, 995 (9th Cir. 1979). No such showing has been made.

B. Claim 2: Constitutional and Statutory Search and Seizure Issues

The district court held that Garrido's fourth amendment search and seizure claims could not be raised on collateral review because the government had provided a full and fair opportunity to present these issues on direct appeal. United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981); Tisnado v. United States, 547 F.2d 452 (9th Cir. 1976). Hearst was explicit: "The Government provided her a full and fair opportunity to raise [the fourth amendment] issue on direct appeal; therefore, it cannot be raised on collateral review." 638 F.2d at 1196; see also United States v. Johnson, 457 U.S. 537, 562 n. 20 (1982).

On appeal, Garrido characterizes his fourth amendment claims as federal statutory claims based on 18 U.S.C. § 2515. We have held that "nonconstitutional claims are not proper for collateral review unless a 'fundamental defect' is asserted which would lead to a 'complete miscarriage of justice'." Marshall v. United States, 576 F.2d 160, 162 (9th Cir. 1978). Garrido's allegations offer no indication of any fundamental defect under Marshall.

C. Claim 3: Government's Failure to Disclose Evidence Favorable to the Defense

Garrido contends he was denied a fair trial by the court's pretrial refusal, under the Jencks Act, to order Special Agent Cazares to produce Cazares' original report of Garrido's arrest. This contention lacks merit. Garrido's Jencks Act claim is unreviewable in this proceeding. Beavers v. United States, 351 F.2d 507, 509 (9th Cir. 1965). In Beavers we stated:

Further, the Jencks Act can have no application here because this is a proceeding under 28 U.S.C. § 2255. It is an elementary proposition that in such proceedings as well as those in habeas corpus, we are dealing with a collateral proceeding in which errors in procedure on the initial trial of the case are not open for review.

Beavers at 509 (citations omitted).

Moreover, Garrido's Jencks Act argument presents a "nonconstitutional claim" in support of which he has failed to allege specific facts showing a fundamental defect in his trial which led to a miscarriage of justice. Marshall v. United States, 576 F.2d at 162.

In his section 2255 petition, Garrido alleged that "by adding the conjunction AND ... [the government] has made the 841(a) (1) and the 846 violations one in the same." The magistrate, and the district court in adopting the magistrate's findings and recommendations, construed this statement to be an allegation "either that a conviction of conspiracy in addition to the underlying offense constitutes double jeopardy or that the imposition of consecutive sentences for those convictions constitutes double jeopardy." Garrido has not offered any further explanation of this claim in his briefs in this appeal.

In affirming Garrido's conviction on direct appeal in United States v. Arbelaez, 719 F.2d 1453, 1461 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984), we stated that there was sufficient evidence to convict Garrido of conspiracy and of the underlying charges. Arbelaez at 1459. Conviction of these crimes is not double jeopardy. See id. Consecutive sentences can be imposed after convictions for conspiracy and the underlying offense. United States v. Wylie, 625 F.2d 1371, 1379 (9th Cir. 1980).

E. Claim 5: Ineffective Assistance of Counsel

Garrido alleges that his counsel at trial was ineffective because he did not conduct an adequate investigation, failed to call particular witnesses, failed to present known exculpatory evidence, and did not let Garrido testify in his own defense. Garrido has failed, however, to present sufficient facts to support these conclusory allegations. Accordingly, a hearing under section 2255 was not required. See United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) (citing Farrow v. United States, 580 F.2d 1339, 1360-61 (9th Cir. 1978) (en banc)).

Garrido also argues that the actions of the magistrate usurped undelegated Article III judicial authority. As we stated in our order of March 20, 1987: "Under Title 28 U.S.C. § 636(b) (1) (B), the district court may designate a magistrate to conduct hearings and to submit to the district court proposed findings of fact and recommendations for the disposition, by a judge of the court, of applications for posttrial relief made by individuals convicted of criminal offenses. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. 28 U.S.C. § 636(b) (1)."

Finally, Garrido charges the magistrate with deliberately misstating the law. This allegation is entirely without merit.

AFFIRMED.