United States v. John McTiernan

552 F. App'x 749

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 22, 2014
• Docket: 13-56526
• Status: Unpublished

Opinion

MEMORANDUM **

John McTiernan appeals the district court’s denial of relief under 28 U.S.C. § 2255. McTiernan argues that his conviction for perjury under 18 U.S.C. § 1623(c) was legally deficient under United States v. Jaramillo, 69 F.3d 388, 390-92 (9th Cir.1995). Alternatively, McTiernan maintains his prior counsel was ineffective for failing to raise Jaramillo. Reviewing the district court’s denial of relief de novo, White v. Martel, 601 F.3d 882, 883 (9th Cir.2010) (per curiam), we affirm.

McTiernan presents his arguments based on Jaramillo as though in direct proceedings. But his challenge is collateral, and under his plea agreement, McTier-nan waived “any right to bring a post-conviction collateral attack on the convictions or sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel.... ” MeTier-nan’s waiver was unambiguously stated and knowingly and voluntarily made, and so is valid and enforceable. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993). Even without the waiver, all of MeTiernan’s claims, except for ineffective assistance of counsel, see Washington v. Lampert, 422 F.3d 864, 871 (9th Cir.2005), are procedurally defaulted because he failed to demonstrate the necessary “cause and actual prejudice,” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), or “actual innocence” of both the offenses of conviction and the charges that the government forewent in plea negotiations, id. at 624, 118 S.Ct. 1604, to excuse default.

To prevail on his ineffective assistance of counsel theory, McTiernan must show that “(1) counsel’s representation fell below the range of competence demanded of attorneys in criminal cases, and (2) ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Washington, 422 F.3d at 873 (quoting Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

McTiernan has made no attempt to show why Jaramillo was never raised by counsel. Although he complains the district court speculated that strategic considerations, rather than ignorance or inadvertence, might explain the omission, ultimately it was MeTiernan’s obligation to rebut the presumption of counsel’s competence. Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir.2008). This he did not do. There is no evidentiary support for the allegation that counsel’s performance was deficient.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.