Opinion
The 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NOT FOR PUBLICATION.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)
After movant's conviction for being felon in possession of firearm was affirmed following remand by the United States Court of Appeals, he filed motion for postconviction relief. The United States District Court for the Eastern District of California, Robert E. Coyle, J., denied relief. Movant appealed. The Court of Appeals held that: (1) counsel could not have been deficient for failing to offer evidence that would not have changed decision to exclude defense; (2) movant was not entitled to hearing, when district court assumed truth of allegations; and (3) movant was not denied opportunity to object to counsel's performance by temporary removal from courtroom.
Affirmed. Appeal from the United States District Court for the Eastern District of California Robert E. Coyle, District Judge, Presiding.
Before KOZINSKI, T.G. NELSON, and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Federal prisoner David Michael Sahakian appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2255, and affirm.
Sahakian contends trial counsel provided by ineffective assistance by failing to present sufficient evidence to establish a justification defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sahakian's contention is without merit. On direct appeal, this court, relying upon United States v. Lemon, 824 F.2d 763, 765 (9th Cir.1987), affirmed the trial court's exclusion of Sahakian's justification defense. See United States v. Sahakian, 965 F.2d 740, 741 (9th Cir.1992), aff'd after remand, 15 F.3d 1094 (9th Cir.1994) (mem.). The evidence now proffered by Sahakian, even if it had been presented by trial counsel at the motion in limine hearing, would not have altered the district court's ruling. See United States v. Wofford, 113 F.3d 977, 980 (9th Cir.), amended on other grounds by 122 F.3d 787 (9th Cir.1997) (citing Sahakian, 965 F.2d at 741). As such, trial counsel's performance was not deficient. See Strickland, 466 U.S. at 687-88.
Sahakian contends the district court abused its discretion in denying his section 2255 motion without the benefit of an evidentiary hearing. Sahakian's contention is without merit. In denying Sahakian's habeas petition, the district court assumed Sahakian's allegations were true, but still found that his evidence did not demonstrate ineffective assistance. See United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (concluding in deciding whether a hearing is necessary, the district court should assume a defendant's allegations are true and determine whether the defendant would prevail).
Sahakian contends the district court abused its discretion by denying his requests to make a "statement" to the court. Sahakian never objected to his counsel's performance, despite the opportunity to do so, nor did he ever move for substitute counsel. Whether the trial court erred by denying Sahakian an opportunity to object to his trial counsel's performance is reviewed for an abuse of discretion. See United States v. Nash, 115 F.3d 1431, 1440 (9th Cir.1997). Sahakian's contention is without merit. The district court did not abuse its discretion in temporarily removing Sahakian from the courtroom and then denying him the opportunity to make a statement. See Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (holding rights may be waived through defendant's disruptive conduct);
Page 878.
Badger v. Cardwell, 587 F.2d 968, 970-71 (9th Cir.1978) (same).
AFFIRMED.