United States v. Juszczak

320 F. App'x 558

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2009
• Docket: No. 08-15073
• Status: Published

Opinion

MEMORANDUM

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Federal prisoner Eddie Jay Juszczak appeals from the district court’s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Juszczak contends that he received ineffective assistance of counsel when his trial counsel failed to challenge at sentencing the characterization of his prior solicitation offense as a controlled substance offense within the meaning of U.S.S.G. § 4B1.2(b). Because this issue is meritless, counsel’s failure to raise the issue does not constitute ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also United States v. Shumate, 329 F.3d 1026, 1030 (9th Cir.), amended by 341 F.3d 852 (9th Cir.2003).

We reject the government’s contention that this issue was previously raised on direct appeal. Cf. United States v. Redd, 759 F.2d 699, 701 (9th Cir.1985).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.