United States v. Edward Ellington

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2022
• Docket: 21-35544
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 8 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-35544

Plaintiff-Appellee, D.C. Nos. 6:19-cv-00038-BMM 6:17-cr-00010-BMM-1 v.

EDWARD PAUL ELLINGTON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Submitted July 6, 2022** Portland, Oregon

Before: WATFORD, R. NELSON, and LEE, Circuit Judges.

Edward Paul Ellington appeals from the district court’s order denying his

motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. We

affirm.

1. The district court correctly concluded that Ellington did not establish

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 2 of 3

ineffective assistance of his sentencing counsel in failing to object to the

calculation of the drug weight or the sentencing enhancements applied in this case.

In order to prevail on an ineffective assistance of counsel claim, Ellington must

show that (1) counsel’s performance fell outside the wide range of reasonable

professional assistance, and (2) there is a reasonable probability that, but for

counsel’s deficient performance, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).

As the district court explained, the presentence report set out the factual

basis for each of the sentencing enhancements, and Ellington’s § 2255 motion

failed to allege any specific facts or law that undermined any enhancement. With

respect to drug weight, Ellington was held responsible for the quantity of drugs

that he himself admitted to obtaining and distributing and those found in his

vehicle during a law enforcement search. In the absence of any factual allegations

demonstrating that counsel had a legitimate objection to make, Ellington has failed

to show that sentencing counsel’s performance was unreasonable. See id. at 687–

88. And because he has failed to allege any facts showing a reasonable probability

that a challenge to the enhancements would have been successful, Ellington

likewise cannot demonstrate the necessary prejudice. Id. at 694.

2. The district court correctly concluded that Ellington failed to establish

ineffective assistance based on counsel’s lack of investigation into possible Page 3 of 3

misconduct by Sheriff Roger Thompson in a matter involving one of Ellington’s

known suppliers. Ellington voluntarily spoke with law enforcement and admitted

to trafficking methamphetamine. He was subsequently caught with

methamphetamine in his vehicle. It is undisputed that Sheriff Thompson was not

involved in the search of Ellington’s vehicle or his arrest. Moreover, Ellington was

indicted, convicted, and sentenced for conduct that occurred prior to, and in a

different county than, later misconduct by Sheriff Thompson with respect to

another suspect. Thus, even if the failure to investigate was unreasonable,

Ellington has failed to demonstrate a reasonable probability that the lack of

investigation into Sheriff Thompson resulted in prejudice. Id.

3. Ellington additionally claims that his prior counsel, Todd Whipple, was

ineffective due to an alleged conflict of interest. Because Ellington failed to raise

this claim below, it is not properly before us. See United States v. Beierle, 77 F.3d

1199, 1201 (9th Cir. 1996).

4. The district court did not abuse its discretion in denying Ellington’s

motion without a hearing because “the motion and the files and records of the case

conclusively show that [Ellington] is entitled to no relief.” 28 U.S.C. § 2255(b);

see United States v. McMullen, 98 F.3d 1155, 1158–59 (9th Cir. 1996).

AFFIRMED.