Ingmire v. Ryan

122 F. App'x 334

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2005
• Docket: No. 04-15959; D.C. No. CV-03-00160-DCB
• Status: Published

Opinion

MEMORANDUM

**

Arizona state prisoner Randy Dale Ingmire appeals the district court’s judgment denying his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003), and we affirm.

Ingmire contends that he received ineffective assistance of counsel because (1) counsel failed to prepare him for and attend his pre-sentence interview, and (2) counsel failed to present mitigating evidence. We disagree.

Because a pre-sentence interview in a non-capital case is not a “critical stage” of trial, Ingmire had no constitutional right to counsel at the interview. See United States v. Benlian, 63 F.3d 824, 827 (9th Cir.1995) (“if the stage is not critical, there can be no constitutional violation, no matter how deficient counsel’s performance”). Further, Ingmire fails to allege what advice counsel should have given that would likely have changed the outcome of the proceeding. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In light of the Ingmire’s extensive criminal history, his lack of remorse, and his repeated failed efforts at substance abuse treatment, Ingmire’s contention that counsel failed to mitigate his extensive juvenile record and failed to seek a second psychiatric opinion also fails to satisfy the Strickland analysis. See id.; see also Bonin v. Calderon, 59 F.3d 815, 836 (9th Cir.1995) (“where the aggravating circumstances are overwhelming, it is particularly difficult to show prejudice at sentencing due to the alleged failure to present mitigation evidence”).

Accordingly, Ingmire is not entitled to federal habeas relief.

AFFIRMED.

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.