FILED
NOT FOR PUBLICATION OCT 25 2010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. 09-16130
Plaintiff - Appellee, D.C. Nos. 2:08-cv-00462-JAT
2:04-cr-01088-JAT
v.
CALVIN FRANK MORRIS, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
**
Submitted October 19, 2010
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Federal prisoner Calvin Frank Morris appeals from the district court’s
judgment denying his motion for relief under 28 U.S.C. § 2255. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly denied Morris’ claim of ineffective assistance of
counsel because Morris has not established deficient performance by his trial
counsel’s decisions not to object to the government’s alleged amendment of the
indictment, or to the Pinkerton instruction. See Rupe v. Wood, 93 F.3d 1434, 1445
(9th Cir. 1996) (failure to take a futile action is not deficient performance).
Furthermore, Morris has not established a reasonable probability that a
separate jury trial on the issue of drug quantity or a request for a minor role
adjustment under the Sentencing Guidelines would have produced a different result
given the extensive evidence against him. Strickland v. Washington, 466 U.S. 668,
694 (1984).
AFFIRMED.
2 09-16130