Harvey Ray Johnson v. United States

38 F.3d 1218 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Harvey Ray JOHNSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 94-35190. United States Court of Appeals, Ninth Circuit. Submitted Oct. 4, 1994. * Decided Oct. 18, 1994. Before: LAY, ** TROTT and T.G. NELSON, Circuit Judges. 1 MEMORANDUM *** 2 Harvey Ray Johnson (Johnson) challenges his sentence pursuant to 28 U.S.C. Sec. 2255 for the second time. He argues that we must vacate his sentence because the district court violated his due process rights by relying on a presentence report (PSR) containing factual inaccuracies and because he received ineffective assistance of counsel during sentencing. The district court adopted the magistrate's recommendation to dismiss the petition pursuant to Rule 9(b) of the Rules Governing Section 2255 Proceedings because his claims of factual inaccuracies and of ineffective assistance should have been raised in the first motion. We affirm. 3 Rule…