United States v. Elven Swisher

FILED
NOT FOR PUBLICATION OCT 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-35796
Plaintiff - Appellee, D.C. Nos. 1:09-cv-00055-BLW
1:07-cr-00182-BLW-
v. 1
ELVEN JOE SWISHER,
MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted May 16, 2014
Portland, Oregon
Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.
Defendant Elven Joe Swisher appeals the district court’s denial of his motion
to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 and moves this
court to expand the certificate of appealability to include claims of ineffective
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
assistance of counsel and the district court’s denial of Swisher’s motions for
discovery and a hearing. We have jurisdiction under 28 U.S.C. § 2253.1
We deny Swisher’s motion to expand the certificate of appealability to
include Swisher’s claims of ineffective assistance of counsel because Swisher has
failed to make “a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Swisher’s attorneys were not deficient in obtaining relevant documents,
because they obtained all of Swisher’s military and medical files, and Swisher’s
claim that further efforts by his attorneys would have turned up evidence
corroborating his account is wholly speculative. See Stenson v. Lambert, 504 F.3d
873, 889 (9th Cir. 2007). For the same reason, he is not entitled to discovery under
Rule 6 of the Federal Rules Governing § 2255 Proceedings for the United States
District Courts. See Calderon v. U.S. Dist. Ct., 98 F.3d 1102, 1106 (9th Cir. 1996).
Swisher’s attorneys were not deficient in allowing Swisher only a limited
opportunity to testify, and Swisher waived this claim by not insisting on testifying
1
In a published opinion filed concurrently with this memorandum, we affirm
the district court’s denial of Swisher’s § 2255 motion on his claim that 18 U.S.C.
§ 704(a) is unconstitutional. United States v. Swisher, ___ F.3d ___ (9th Cir.
2014).
2
further during trial. See United States v. Pino-Noriega, 189 F.3d 1089, 1094–95
(9th Cir. 1999).
Swisher’s attorneys did not operate under an actual conflict of interest due to
their representation of David Hinkson in a criminal tax case because Swisher did
not establish that the Hinkson tax case was “substantially related” to Swisher’s
case, or that his attorneys “reveal[ed] privileged communications” or otherwise
divided their loyalties. Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988).
Swisher’s claim that his attorneys’ performance was deficient because they
failed to call Brit Groom as a witness regarding Swisher’s DD-214 is without
merit, because it is undisputed that Groom would not be qualified to testify as to
the authenticity of the DD-214.
Swisher’s attorneys were not deficient in failing to challenge the seating of a
member of the Army Special Forces as a juror because Swisher did not establish
any colorable claim of bias.
Finally, Swisher has not established that his attorneys’ performance during
closing argument was deficient because the choice to use sarcasm as a rhetorical
device “did not fall[] below an objective standard of reasonableness.” See
Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003).
3
Because Swisher has not “alleged facts which, if true, might establish a right
to relief,” there was no need for an evidentiary hearing. United States v. Chacon-
Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000).
AFFIRMED.
4