United States v. Thomas Ross

584 F. App'x 502

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 2014
• Docket: 11-16590
• Status: Unpublished

Opinion

MEMORANDUM ***

Thomas Ross appeals the district court’s denial of his 28 U.S.C. § 2255 motion challenging his drug convictions and sentences. We review the ineffective assistance of counsel claims de novo and denial of the evidentiary hearing for an abuse of discretion. United States v. Chacon-Palomares, 208 F.3d 1157, 1158-59 (9th Cir.2000). We affirm.

Ross claims that his trial lawyer (Muhammad) was ineffective for advising him to reject a pretrial plea agreement. To prevail on his claim, Ross must establish that he was prejudiced — i.e., that there was a reasonable probability that Ross would have accepted the pretrial plea but for his lawyer’s bad advice. Missouri v. Frye, — U.S.-, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). This claim fails because there is no evidence in the record that Ross would have considered or ac cepted any pretrial plea. In fact, the evidence is to the contrary. The lawyer that Ross had before Muhammad (Holley) strongly recommended that Ross accept the plea, but Ross would not hear of it. Ross also rejected a plea offer made after he already had been found guilty and had been made aware of his sentencing exposure by his newest lawyer (Frick). The record supports the district court’s finding that Ross was not prejudiced by any supposed deficient advice to reject the original plea because there is no reason to believe he would have accepted it no matter what Muhammad advised.

' Ross also claims that defense counsel was ineffective for failing to object when the prosecutor invited Ross to comment on the truthfulness of government witnesses and then emphasized his testimony during closing argument. To establish prejudice, Ross must prove there was a reasonable probability that the outcome would have been different had defense counsel objected. United States v. Leonti, 326 F.3d 1111, 1120 (9th Cir.2003). This claim fails because the supposedly improper conduct was minor, and there was very strong evidence of guilt. The strongest evidence came from Ross’s own multiple written and taped confessions and a co-defendant’s testimony. The jury heard two audio taped confessions, watched the videotaped confession, and read the written confession. Ross’s confession to the police detective that he stole drums of pseudoephed-rine on three occasions was consistent with the co-defendant’s testimony, and the prosecutor did not question Ross about the co-defendant’s veracity. In this context, the objectionable questions cannot be said to have likely tainted the result in any way.

Ross cannot prove that he was prejudiced by appellate counsel’s failure to raise prosecutorial misconduct on direct appeal: The improper questions were not of great significance and were dwarfed by both Ross’s own confessions and that of his co-defendant.

Finally, the district court did not abuse its discretion by not conducting an eviden-tiary hearing. There are no disputed facts, and the district court assumed that all of Ross’s statements were true. The alleged facts do not entitle Ross to relief. Leonti 326 F.3d at 1116.

AFFIRMED.

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