NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 10 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-35252
Plaintiff - Appellee, D.C. Nos. 2:09-cv-00148-WFN
2:04-cr-00262-WFN
v.
KENNETH DALE GOOCH, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted March 8, 2011
Seattle, Washington
Before: McKEOWN, FISHER, and GOULD, Circuit Judges.
Defendant-Appellant Kenneth Gooch appeals the district court’s denial of
his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on
the ground that his counsel provided him with ineffective assistance. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
There are two elements that a defendant must satisfy to establish a Sixth
Amendment right to counsel violation on the theory that counsel’s representation
was constitutionally ineffective: First, it is necessary to show that counsel’s
performance was deficient and, second, the defendant must show that the deficient
performance prejudiced the defense. See Earp v. Ornoski, 431 F.3d 1158, 1173
(9th Cir. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). There
is a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. Gooch has not
shown that his counsel’s performance was deficient.1
Gooch contends that his counsel should have made further efforts to locate
and interview two potential witnesses, Elizabeth Troudt and Amanda Card. But
“[a] claim of failure to interview a witness . . . cannot establish ineffective
assistance when the person’s account is otherwise fairly known to defense
counsel.” Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Eggleston
v. United States, 798 F.2d 374, 376 (9th Cir. 1986)). Defense counsel knew
Troudt’s account because he reviewed the transcript of her grand jury testimony
and reports of her interviews with law enforcement. Gooch does not identify
1
Because we hold that counsel’s performance was not deficient, we
need not assess whether counsel’s performance prejudiced the defense.
2
additional information his counsel would have obtained by interviewing Troudt,
except to claim that her testimony would have been useful to impeach a key
prosecution witness. But Troudt’s testimony would also have implicated Gooch by
connecting him to the Beretta. The strategy of not pursuing Troudt further as a
witness2 falls within the “wide latitude” accorded counsel for tactical decisions.
Strickland, 466 U.S. at 689.
Nor does Gooch explain what relevant information would have been gained
by interviewing Card. Her testimony might have been used to impeach Troudt, but
because Troudt didn’t testify, what Card might have said would not have affected
the jury’s decision.
AFFIRMED.
2
Defense counsel did hire an investigator to find Troudt, but that effort
was not successful.
3