United States of America, Plaintiff-appellee, v. Victor Cervantes Martinez, Defendant-appellant, 91 F.3d 156 (9th Cir. 1996)

MEMORANDUM^** 

Victor Cervantes Martinez, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence following his guilty plea conviction for being a deported alien with aggravated felonies in violation of 8 U.S.C. § 1326(a), (b) (1) and (b) (2). He contends that: (1) 8 U.S.C. § 1326 is unconstitutionally vague; (2) the sentencing court's application of the 1991 Sentencing Guidelines resulted in an ex-post facto violation; and (3) the district court erred by denying his section 2255 motion without first giving him an opportunity to file a traverse and without first holding an evidentiary hearing. We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo, Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994), and we affirm.¹ 

Martinez contends that 8 U.S.C. § 1326 is impermissibly vague and constitutionally infirm because the language used in the statute encourages arbitrary and discriminatory enforcement. His contention is foreclosed by United States v. Ayala, 35 F.3d 423, 425 (9th Cir. 1994) (terms used in section 1326 do not render the statute vague or constitutionally infirm), cert. denied, 115 S. Ct. 1365 (1995).

Martinez contends that the district court should have sentenced him under the November 1, 1990 Guidelines because his crime was "complete" prior to the effective date of the November 1991 Guidelines. This claim was expressly rejected by this court in Martinez's direct appeal. See United States v. Martinez, No. 93-50540, unpublished memorandum disposition (9th Cir. Oct 27, 1994). Accordingly, we will not review that claim in this appeal. See United States v. Redd, 759 F.2d 699, 700-01 (9th Cir. 1985) (per curiam); Egger v. United States, 509 F.2d 745, 748 (9th Cir.), cert denied, 423 U.S. 842 (1975).

Martinez contends that the district court erred in denying his section 2255 motion without first allowing him the opportunity to file a traverse and without first holding an evidentiary hearing. These contentions lack merit.

Under section 2255, a hearing need not be conducted if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (1994); see also Frazer, 18 F.3d at 781. Such a determination may be made either before any response is ordered from the government or after the government has filed a response. See Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. § 2255, Advisory Committee's Note to Rule 5.

Here, the record conclusively shows that Martinez is not entitled to relief under section 2255. Accordingly, the district court did not err when it denied the motion without holding an evidentiary hearing. See 28 U.S.C. § 2255 (1994); Frazer, 18 F.3d at 781. Furthermore, Martinez has shown no harm from the district court's failure to provide him with an opportunity to file a traverse. See Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. § 2255, Advisory Committee's Note to Rule 5.²  The district court's order is therefore

AFFIRMED.