Summary
rejecting ineffective assistance claim for failure to interview a witness because counsel became aware of witness's account by reviewing record
Summary of this case from Valerio v. FrauenheimOpinion
No. 10-35252.
Argued and Submitted March 8, 2011.
Filed March 10, 2011.
Timothy John Ohms, Assistant U.S. Attorney, USSP-Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Appellee.
Jeffrey Scott Niesen, Esquire, Trial, Law Office of Jeffrey S. Niesen, Spokane, WA, for Defendantr-Appellant.
Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Senior District Judge, Presiding. D.C. Nos. 2:09-cv-00148-WFN, 2:04-cr-00262-WFN.
Before: McKEOWN, FISHER, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Defendantr-Appellant Kenneth Gooch appeals the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on the ground that his counsel provided him with ineffective assistance. We affirm.
There are two elements that a defendant must satisfy to establish a Sixth Amendment right to counsel violation on the theory that counsel's representation was constitutionally ineffective: First, it is necessary to show that counsel's performance was deficient and, second, the defendant must show that the deficient performance prejudiced the defense. See Earp v. Ornoski 431 F.3d 1158, 1173 (9th Cir. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland,
466 U.S. at 689, 104 S.Ct. 2052. Gooch has not shown that his counsel's performance was deficient.
Because we hold that counsel's performance was not deficient, we need not assess whether counsel's performance prejudiced the defense.
Gooch contends that his counsel should have made further efforts to locate and interview two potential witnesses, Elizabeth Troudt and Amanda Card. But "[a] claim of failure to interview a witness . . . cannot establish ineffective assistance when the person's account is otherwise fairly known to defense counsel." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)). Defense counsel knew Troudt's account because he reviewed the transcript of her grand jury testimony and reports of her interviews with law enforcement. Gooch does not identify additional information his counsel would have obtained by interviewing Troudt, except to claim that her testimony would have been useful to impeach a key prosecution witness. But Troudt's testimony would also have implicated Gooch by connecting him to the Beretta. The strategy of not pursuing Troudt further as a witness falls within the "wide latitude" accorded counsel for tactical decisions. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
Defense counsel did hire an investigator to find Troudt, but that effort was not successful.
Nor does Gooch explain what relevant information would have been gained by interviewing Card. Her testimony might have been used to impeach Troudt, but because Troudt didn't testify, what Card might have said would not have affected the jury's decision.