United States v. Steven Carpenter

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2019
• Docket: 18-35496
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-35496

Plaintiff-Appellee, D.C. Nos. 4:16-cv-00077-BMM 4:12-cr-00065-BMM-2 v.

STEVEN WILLIAM CARPENTER, MEMORANDUM*

Defendant-Appellant.

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

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Federal prisoner Steven Carpenter appeals pro se from the district court’s

order denying his 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C.

§ 2253. We review de novo, see United States v. Reves, 774 F.3d 562, 564 (9th

Cir. 2014), and we affirm.

* 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). Carpenter contends that trial counsel was ineffective for failing to challenge

the District of Montana as an improper venue for the mail and wire fraud counts

under 18 U.S.C. §§ 1341 and 1343.1 Contrary to Carpenter’s contentions, the

record reflects that Carpenter’s conduct had a sufficient connection to Montana to

render venue proper on both counts. See United States v. Pace, 314 F.3d 344, 349-

50 (9th Cir. 2002) (venue for section 1343 is established in those locations where

the wire transmission at issue originated, passed through, was received, or from

which it was orchestrated); United States v. Garlick, 240 F.3d 789, 792 (9th Cir.

2001) (mail and wire fraud have analogous elements); see also United States v.

Gal, 606 F. App’x 868, 871 (9th Cir. 2015). Accordingly, Carpenter has not

demonstrated that trial counsel’s failure to challenge venue was objectively

unreasonable. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see

also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (holding that

counsel is not ineffective for failing to raise a meritless argument).

We treat Carpenter’s additional claim as a motion to expand the certificate

of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e);

Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

AFFIRMED.

1 The district court also certified for appeal whether Carpenter’s appellate counsel was ineffective for failing to raise various sentencing challenges on direct appeal. Carpenter did not address this argument in his briefs and, therefore, waived it. See Blanford v. Sacramento County, 406 F.3d 1110, 1114 n.8 (9th Cir. 2005).

2 18-35496