FILED
NOT FOR PUBLICATION JUL 12 2010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. 09-15526
Plaintiff - Appellee, D.C. Nos. 2:96-cr-00190-JAM-
GGM-1
v.
JAMES ROY BARRON, Jr., MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted April 15, 2010
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**
James Barron appeals the district court’s denial of his motion under 28
U.S.C. § 2255 to vacate his sentence. Barron claims he was denied his Sixth
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
Amendment right to effective counsel when his lawyer prevented him from
testifying on his own behalf.
Barron has not shown ineffective assistance, because he failed to object
when his lawyer did not call him as a witness. See United States v. Nohara, 3 F.3d
1239, 1243-44 (9th Cir. 1993). The district court evidentiary hearing on his
ineffectiveness claim demonstrates that Barron was not afraid to assert himself in
court, as he fired his first lawyer on the eve of trial. Barron also testified on his
own behalf in two previous trials, leading to prior convictions, so he was well
aware of his right to testify.
Barron has also failed to demonstrate that, even assuming there was some
failure on the part of his counsel, it resulted in prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). As the district court found, had Barron
testified, the government would have been able to impeach his testimony with
three prior felony drug convictions. See Dows v. Wood, 211 F.3d 480, 487 (9th
Cir. 2000). A confidential informant and police officer also both testified at trial to
witnessing Barron engage in drug deals.
Barron’s claim that he was denied his right to testify is procedurally barred
because he failed to raise this claim on direct appeal. See United States v. Guess,
203 F.3d 1143, 1145 (9th Cir. 2000). A defendant waives his right to testify if he
2
does not object before the verdict is read. See United States v. Pino-Noriega, 189
F.3d 1089, 1095 (9th Cir. 1999). Barron is, therefore, incorrect that this claim
required evidence from outside the trial court record and that he could not have
raised it on direct appeal. See Bousley v. United States, 523 U.S. 614, 621-22
(1998).
AFFIRMED.
3