Submitted August 12, 2002.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant who was convicted of conspiracy to distribute cocaine base and aiding and abetting moved to vacate his conviction and sentence. The United States District Court for the Central District of California, Dickran M. Tevrizian, J., denied the motion, and movant appealed. The Court of Appeals held that defendant was not prejudiced, as element of ineffective assistance of counsel claim, by counsel's failure to object, and seek severance based upon, the introduction of evidence of the confession by defendant's non-testifying co-defendant.

Affirmed.

Appeal from the United States District Court for the Central District of California Dickran M. Tevrizian, District Judge, Presiding.

Before SCHROEDER, Chief Judge, TASHIMA and RAWLINSON, Circuit Judges.

MEMORANDUM

Kenneth J. Lumpkin appeals the district court's order denying his 28 U.S.C. § 2255 motion to vacate his conviction and 240-month sentence for conspiracy to distribute cocaine base and aiding and abetting, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841. We have jurisdiction under 18 U.S.C. § 1291. We review de novo the district court's denial of Lumpkin's motion to vacate, see United States v. Chacon-Palomares, 208 F.3d 1157, 1158 (9th Cir.2000), and we affirm.

Lumpkin argues that his counsel at trial provided ineffective assistance by failing to object, and seek severance based upon, the introduction of evidence of the confession by Lumpkin's non-testifying co-defendant, evidence which implicated Lumpkin in violation

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of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

To prevail on a claim of ineffective assistance of counsel, Lumpkin must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In this case, there was no clear Bruton violation. Moreover, the record overwhelmingly links Lumpkin to a conspiracy to distribute cocaine base and aiding and abetting. Lumpkin was not only observed by law enforcement agents assisting a drug trafficking transaction, but the testimony of a drug courier detailed Lumpkin's specific involvement in the conspiracy.

Thus, regardless of whether or not the evidence of the co-defendant's confession may have violated Bruton, taking into consideration the rest of the evidence against Lumpkin, it is not reasonably probable that the outcome of the trial would have been different, and there was no prejudice. See id.

Accordingly, the district court did not err in denying Lumpkin's § 2255 motion to vacate.

AFFIRMED.