Jose R. Vargas v. United States

455 F.2d 501, 1972 U.S. App. LEXIS 11503

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 3, 1972
• Docket: 71-2066
• Status: Published

Opinion

PER CURIAM:

Appellant was convicted of selling heroin in violation of 21 U.S.C. § 174 and of concealing heroin in violation of the same section. He appealed and this court affirmed. United States v. Vargas, 436 F.2d 1280 (9th Cir. 1971). He then instituted this collateral proceeding under 28 U.S.C. § 2255 to vacate and set aside the conviction. The district court denied the section 2255 motion and Vargas appeals. We affirm.

On appeal Vargas challenges the legality of his search and arrest. The same issue was presented on Vargas’ direct appeal and was determined adversely to him. He is not entitled to a second review of the same question in this section 2255 proceeding, Murgia v. United States, 448 F.2d 1275 (9th Cir. 1971); Stein v. United States, 390 F.2d 625 (9th Cir. 1968), without a showing of new evidence. He has presented none.

Equally without merit is Vargas’ second contention that he was denied his Sixth Amendment right to counsel because his trial counsel and his counsel on his direct appeal were incompetent and did not adequately prepare his defense. The record indicates that both attorneys were vigorous and able in their representation. Vargas has received legal assistance which is anything but “a farce or mockery of justice.” See Borchert v. United States, 405 F.2d 735, 738 (9th Cir. 1968) and Dodd v. United States, 321 F.2d 240, 243 (9th Cir. 1963).

Affirmed.