Jose Garcia v. United States

61 F.3d 910 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Jose GARCIA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 94-55095. United States Court of Appeals, Ninth Circuit. Submitted July 17, 1995. * Decided July 20, 1995. Before: FLETCHER, KOZINSKI, and THOMPSON, Circuit Judges. 1 MEMORANDUM ** 2 Jose Garcia, a federal prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2255 motion challenging his jury conviction for distribution of cocaine, in violation of 21 U.S.C. Sec. 841 (a)(1). Garcia contends that his right to effective assistance of counsel was violated because the federal defender's performance was deficient, and the district court violated his right to due process by not considering this claim. The government argues that Garcia's ineffective assistance of counsel claim was raised on direct appeal and thus the Sec. 2255 motion is successive. We have jurisdiction under 28 U.S.C. Sec. 1291 , and we affirm. 3 We…