Justin Izatt v. United States

FILED
NOT FOR PUBLICATION
MAY 29 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUSTIN LYLE IZATT, No. 17-35130
Petitioner - Appellant D.C. Nos.
CV 13-00431-S-EJL
v. CR 10-00112-S-EJL
UNITED STATES OF AMERICA
MEMORANDUM*
Respondent - Appellee
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, United States District Judge, Presiding
Argued and Submitted May 9, 2018
Seattle, Washington
Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM, Chief District
Judge.**
Petitioner - Appellant Justin Izatt appeals the District Court’s denial of his 28
U.S.C. § 2255 petition without an evidentiary hearing. Izatt argues that his trial
counsel provided ineffective assistance by (1) waiving Izatt’s speedy trial rights
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.
without his consent; (2) failing to investigate, communicate with Izatt, and prepare for
trial; (3) making and breaking a promise to the jury that Izatt would testify; (4) failing
to request a continuance before calling defense witness Mariah Pace; (5) failing to
fully develop defense testimony; and (6) committing various errors at the sentencing
phase. For the reasons that follow, we affirm the denial of Izatt’s habeas petition
without an evidentiary hearing.
We review the denial of a § 2255 petition de novo, United States v. Reves, 774
F.3d 562, 564 (9th Cir. 2014), and the denial of an evidentiary hearing on the petition
for an abuse of discretion, United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.
2003). An evidentiary hearing is warranted if the petitioner makes “specific factual
allegations that, if true, state a claim on which relief could be granted.” United States
v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (quoting United States v. Schaflander,
743 F.2d 714, 717 (9th Cir. 1984)). A claim of ineffective assistance of counsel
requires a petitioner to show both that counsel’s performance was deficient and that
the deficient performance prejudiced the petitioner. Vega v. Ryan, 757 F.3d 960, 965
(9th Cir. 2014) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 687-88
(1984)).
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I.
With regard to counsel’s request for a continuance, Izatt fails to allege
prejudice. If Izatt’s counsel had not agreed to continuances, Izatt would have
proceeded to trial on time, and there would have been no basis for a motion to dismiss
the charges. As such, Izatt has not alleged facts that show that, “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
II.
With regard to counsel’s failure to investigate, communicate with Izatt, and
prepare for trial, Izatt has not alleged specific facts that show deficient performance
or prejudice. He alleges no specific errors that stemmed from counsel’s failure to
spend time with him or failure to communicate with him. Counsel’s decisions
regarding investigation and interviewing of witnesses were trial strategy decisions,
and “strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Id. at 690. Moreover, the additional
witnesses’ testimony would have been cumulative; thus, Izatt has not shown that he
was prejudiced. See Wong v. Belmontes, 558 U.S. 15, 22-23 (2009); Bible v. Ryan,
571 F.3d 860, 871 (9th Cir. 2009).
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III.
With regard to counsel’s broken promise to the jury that Izatt would testify,
Izatt has not alleged facts that show deficient performance or prejudice. Counsel
reasonably changed strategies after Pace testified that the methamphetamine was hers,
and Izatt has not alleged facts that show that the result of his proceeding would have
been different had he testified. Indeed, it is likely that Izatt’s testimony would have
been more prejudicial than his failure to take the stand.
IV.
With regard to counsel’s failure to request a continuance before calling Pace,
Izatt has not alleged facts that show prejudice. He alleges no facts that counsel could
have discovered during the continuance that would have rehabilitated Pace. Thus,
there is no reason to think that the result of the proceeding would have been different
had a continuance been sought.
V.
With regard to counsel’s failure to develop Pace’s testimony, Izatt has not
alleged facts that show deficient performance because Attorney Nelson was not
responsible for examining Pace. With regard to counsel’s failure to develop Brandon
Harvey’s testimony, Izatt has not alleged facts that show prejudice because the
referenced testimony was elicited by the United States and did not help Izatt’s case.
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VI.
With regard to counsel’s performance at the sentencing phase, Izatt has not
alleged prejudice. Izatt faced a mandatory minimum sentence of life imprisonment;
thus, even improved performance by counsel would not have changed the outcome at
sentencing.
Because Izatt failed to make specific factual allegations that, if true, would
constitute ineffective assistance of counsel, the District Court did not err in denying
his § 2255 petition and did not abuse its discretion in denying an evidentiary hearing.
AFFIRMED.
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