UNITED STATES v. ACKERMAN (2019)

MEMORANDUM **

Federal prisoner Duane Charles Ackerman appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014), we affirm.

Ackerman contends that his initial, retained counsel provided ineffective assistance leading up to Ackerman’s change of plea hearing. The district court did not err by denying Ackerman’s claim. Contrary to Ackerman’s contentions, Ackerman did not enter into his plea agreement while he was represented by his retained counsel. Instead, Ackerman was appointed and consulted with new counsel before entering the plea agreement. Accordingly, Ackerman cannot demonstrate he suffered any prejudice from his retained counsel’s alleged deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Ackerman next contends that his appointed counsel also rendered ineffective assistance by failing to advise him about a possible defense strategy to the 18 U.S.C. § 2251 counts. Because the defense strategy that Ackerman asserts would not have succeeded at trial, see United States v. Banks, 556 F.3d 967, 979-80 (9th Cir. 2009), Ackerman cannot demonstrate that he suffered any prejudice, see Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

We decline to consider Ackerman’s remaining ineffective assistance of counsel claims that were not raised before the district court or in his opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n appellate court will not consider issues not properly raised before the district court. Furthermore, on appeal, arguments not raised by a party in its opening brief are deemed waived.”).

We treat Ackerman’s additional claims 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.