United States of America, Plaintiff-appellee, v. Francisco Aureli Carrasco-villegas, Defendant-appellant, 133 F.3d 929 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 133 F.3d 929 (9th Cir. 1997) Argued and submitted Dec. 4, 1997. Decided Dec. 31, 1997

Before: HALL, BRUNETTI, and RYMER, Circuit Judges.

MEMORANDUM* 

Petitioner, Francisco A. Carrasco-Villegas, appeals the district court's order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. We review de novo the decision of whether to grant or deny a petition for writ of habeas corpus. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). If an issue is not raised in a section 2255 habeas petition before the district court, it may not be raised before this Court for the first time. United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990). Failure to raise the issue to the district court results in waiver of that issue on appeal. Sanchez v. United States, 50 F.3d 1448, 1456 (9th Cir. 1995).

In this case, petitioner based his section 2255 habeas petition on vindictive prosecution. The district court denied the petition, finding no evidence that vindictive prosecution occurred entitling him to have his judgment set aside, or the original charges dismissed. On appeal from that denial, petitioner alleges a new issue: that his attorney possibly had a conflict of interests that may have violated his Sixth Amendment right to effective assistance of counsel.

Petitioner does not appeal the judgment of the district court finding no evidence of vindictive prosecution. Petitioner bases his appeal on the issue of conflicted counsel. Since the Sixth Amendment issue was not raised below in petitioner's habeas petition to the district court, it may not be raised here for the first time. Keller, 902 F.2d at 1395.1 

The petition is DENIED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

 1

To the extent that the Sixth Amendment issue of conflicted counsel was not discovered until the issue was revealed in the government's response brief to the section 2255 petition, petitioner's remedy appears to be a Fed. R. Civ. P. 60(b) motion, and not the instant appeal from the district court judgment

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