103 F.3d 141
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Steven Scott FERNANDES, Defendant-Appellant.
No. 95-55746.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 5, 1996.*
Decided Nov. 7, 1996.
Before: PREGERSON, REINHARDT, and T.G. NELSON, Circuit Judges.
MEMORANDUM**
Scott Steven Fernandes, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his 168-month sentence imposed following his guilty plea conviction for conspiring to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & 846. We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir.1995), and we affirm.
Fernandes contends that: (1) his sentence was improperly calculated because the government failed to prove that the substance he conspired to manufacture was D-methamphetamine as opposed to L-methamphetamine; (2) his trial counsel was ineffective for failing to raise the issue at sentencing; and (3) the district court erred by denying his section 2255 motion without first ordering the government to file a response or holding an evidentiary hearing. Fernandes' contentions are foreclosed by United States v. McMullen, No. 95-36031, slip op. 14007, 14012 (9th Cir. Oct. 23, 1996) (holding that defendants cannot raise D-meth/L-meth claim for the first time in a section 2255 motion and concluding that trial counsel's failure to pursue the issue at sentencing did not fall below an objective standard of reasonableness); see also Frazer v. United States, 18 F.3d 778, 781 (9th Cir.1994) (evidentiary hearing not required where record conclusively shows that movant is not entitled to relief).
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. In addition, because we affirm the denial of relief under the former version of 28 U.S.C. § 2255, we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3