United States v. Matthew Hutcheson ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-35436
Plaintiff-Appellee, D.C. Nos. 1:16-cv-00442-WFN
1:12-cr-00093-WFN-1
v.
MATTHEW HUTCHESON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Wm. Fremming Nielsen, District Judge, Presiding
Submitted July 15, 2019**
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Matthew Hutcheson appeals pro se from the district court’s order denying
his 28 U.S.C. § 2255 motion challenging his conviction and 210-month sentence
for wire fraud, in violation of 18 U.S.C. § 1343. We have jurisdiction under 28
U.S.C. § 2253. We review de novo the district court’s denial of a section 2255
*
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).
motion, see United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012), and we
affirm.
Hutcheson contends that trial counsel was constitutionally ineffective for
failing to investigate and present the “ERISA defense” theory advanced by
Hutcheson. The record reflects that trial counsel understood and thoroughly
investigated this theory but concluded that (1) the theory could not be corroborated
adequately, and (2) the more effective trial strategy would be to argue that
Hutcheson lacked the intent to defraud. This did not amount to constitutionally
deficient performance. See Strickland v. Washington, 466 U.S. 668, 690(1984);
(“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.”).
Hutcheson also contends that appellate counsel was constitutionally
ineffective on direct appeal for failing to cite United States v. Evans, 728 F.3d 953(9th Cir. 2013), when challenging the district court’s exclusion of documentary
evidence of “irrevocable trust receipts.” Because Evans is inapposite, counsel’s
failure to cite and argue it was not objectively unreasonable. See Strickland, 466
U.S. at 687-88; see also Smith v. Robbins, 528 U.S. 259, 288 (2000) (presumption
of effective assistance of appellate counsel is generally overcome “only when
2 18-35436
ignored issues are clearly stronger than those presented”).
We treat Hutcheson’s briefing of 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 (9th Cir. 1999).
Hutcheson’s motion to supplement the record is denied. The Clerk shall
strike Attachments A, B, and C at Docket Entry No. 14-2 and the material at
Docket Entry No. 19. The motion to seal at Docket Entry No. 14-1 is denied as
moot.
Hutcheson’s motion for judicial notice is denied.
AFFIRMED.
3 18-35436