Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3) [Copyrighted Material Omitted]
J. Gregory Damm, Esq., Las Vegas, NV, for Plaintiff-Appellee.
Robert G. Levitt, Esq., Denver, CO, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding. D.C. Nos. CV-04-00136-PMP, CR-96-00288-PMP.
Before: TROTT, T.G. NELSON, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Keith Shwayder appeals the district court's denial of his 28 U.S.C. § 2255 motion on six grounds. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. The district court properly denied the motion.
Assuming Shwayder's claim for ineffective assistance of trial counsel based on his counsel's failure to disclose the full extent of his conflict of interest differs from the claim Shwayder raised on direct appeal, it fails. The definition of an "actual conflict" requiring reversal under Mickens v. Taylor is a conflict that actually "affected counsel's performance." This court found on direct appeal that the conflict did not affect counsel's performance. That finding precludes the conclusion that counsel's conflict in this case requires reversal under Mickens.
535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).
Id.; see United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir.2003) (" '[A]ctual conflict' is a term of art defined by reference not to the nature of the alleged conflict itself, but to the effect of the conflict on the attorney's ability to advocate effectively.").
To the extent that Shwayder also raises a claim of ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this court's previous finding prevents him from showing prejudice. Id. at 687, 104 S.Ct. 2052.
Shwayder's second claim, for ineffective assistance of appellate counsel, also fails. The district court found that counsel's decision not to raise the sentencing issues in question was "a matter of professional judgment and strategy." Shwayder does not challenge this finding, much less show that it is clearly erroneous. Accordingly, we affirm.
To the extent Shwayder intended to raise in this appeal a claim of ineffective assistance of counsel at sentencing, he waived that issue by failing to raise it before the district court. See Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir.1996).
United States v. Battles, 362 F.3d 1195, 1196 (9th Cir.2004) (reciting standard of review).
See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (holding that appellate counsel need not raise every non-frivolous issue on appeal).
Shwayder procedurally defaulted his third and fourth claims, that the Government failed to turn over Brady material
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Page 657.
and that it issued a multiplicitous indictment. Shwayder argues that his appellate counsel was ineffective for failing to raise these issues on direct appeal, and that this ineffectiveness constitutes cause for his default. This argument fails.
Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ("[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.").
Shwayder's fifth claim, under Blakely v. Washington, fails because Blakely does not apply retroactively. Shwayder's sixth claim, that the district court abused its discretion when it denied his request for an evidentiary hearing, also fails. The district court properly determined that no evidentiary hearing was warranted.
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir.2005).
Rodrigues, 347 F.3d at 823 (reciting standard of review).
See 28 U.S.C. § 2255 (providing for a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief"); Rodrigues, 347 F.3d at 824 (noting that, to be entitled to a hearing, a petitioner must "allege specific facts which, if true, would entitle him to relief") (internal quotation marks omitted).
AFFIRMED.