United States v. Wendolen Howard , 406 F. App'x 216 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-17906
Plaintiff - Appellee, DC No. 2:05 cv-0711 PMP
v.
WENDOLEN LEONARD HOWARD, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted December 6, 2010 **
San Francisco, California
Before: COWEN,*** TASHIMA, and SILVERMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
Wendolen Howard appeals the district court’s denial of his motion for relief
under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
We agree with the district court that Howard did not establish that his trial
counsel’s allegedly deficient performance caused him prejudice. The record makes
plain that Howard withdrew his guilty plea with full knowledge of the thirteen
incriminating recordings that the Government eventually used to convict him at
trial. Howard argues that had his counsel provided him with the remaining
recordings (the ones the Government never sought to use at trial), he would have
known that those recordings did not contain exculpatory material capable of saving
him at trial and, having thus lost any lingering hope of prevailing before a jury,
would have maintained his plea. This argument does not establish prejudice under
the “reasonable probability” standard. Styers v. Schriro, 547 F.3d 1026, 1030 (9th
Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 695 (1984)).
Howard decided to withdraw his guilty plea and take his chances at trial
despite overwhelming evidence against him and despite his counsel’s strong advice
to the contrary. There is no reason to think Howard would have acted more
rationally after confirming that the remaining tapes did not contain a defense
panacea. Indeed, he does not explain what panacea the remaining tapes could
possibly have contained. His only suggestion is that he thought the other tapes
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might place the inculpatory material “in context,” but as his trial counsel points
out, admissions of guilt and blatant cover-up attempts resist contextualization. On
this record, the ineffective assistance of counsel claim fails for lack of prejudice.
See, e.g., United States v. Fry, 322 F.3d 1198, 1201 (9th Cir. 2003); Jackson v.
Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). We thus need not explore
Strickland’s other prong.
AFFIRMED.
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