NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 03 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 08-35853
Plaintiff - Appellee, D.C. Nos. 3:04-cv-01213-HA
3:98-cr-00208-HA
v.
BYRON VAN BRANCH, Jr., AKA Muff, MEMORANDUM *
AKA John Macell,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted December 9, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
Byron Branch, Jr., (“Branch”) was convicted in federal court of 31 counts of
various drug trafficking, money laundering, and related conspiracy offenses. He
was sentenced to the statutory mandatory minimum of life imprisonment. Both his
conviction and his sentence were upheld on appeal. Branch moved to set aside his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction pursuant to 28 U.S.C. § 2255. The district court denied the motion.
Branch timely appealed. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253, and we affirm.
“A district court’s denial of a petition for writ of habeas corpus is reviewed
de novo.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006). The Sixth
Amendment guarantees a criminal defendant’s right to the effective assistance of
counsel. Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam). This right is
violated when i) defense counsel’s performance falls below an objective standard
of reasonableness under prevailing professional norms, and ii) counsel’s errors
seriously prejudice the defendant. Strickland v. Washington, 466 U.S. 668, 687
(1984). To show prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
Branch was not prejudiced by his counsel’s failure to present a diminished
capacity defense or witnesses supporting such a defense. Although the government
alleged that Branch participated in a conspiracy that involved the distribution of
hundreds of kilograms of cocaine, an amount of only five kilograms of cocaine is
sufficient to trigger the statutory mandatory minimum life sentence Branch
received. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). While a diminished capacity
defense might cast doubt on Branch’s ability to foresee some effects of the
conspiracy in which he participated, such a defense would not rebut the
overwhelming evidence presented by the government at trial showing that Branch
personally participated in the purchase and distribution of between five and eleven
kilograms of cocaine.
The district court correctly denied Branch’s Sixth Amendment conflict of
interest claim without a hearing. “The district court may deny a section 2255
motion without an evidentiary hearing only if the movant’s allegations, viewed
against the record, either do not state a claim for relief or are so palpably incredible
or patently frivolous as to warrant summary dismissal.” United States v. Mejia-
Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (citations omitted). Branch’s allegation
that his attorney did not pursue a misconduct hearing against the government with
appropriate vigor, possibly because the attorney was intimidated by government
counsel, is speculative. Branch’s allegation that his attorney chose to delay
obtaining a SPECT scan due to intimidation is frivolous given his attorney’s valid
reasons for delaying the scan, including his concern that a negative scan would
harm Branch’s case.
As to the failure to call Branch’s girlfriend as a witness, there was no failure
of effective representation. Branch’s lawyer decided not to call her because he
concluded that doing so could result in the introduction of evidence that Branch
had acted violently towards her, and that evidence would prejudice Branch’s
overall defense. This strategic determination was not objectively unreasonable.
Finally, as to Branch’s claims regarding restrictions on his ability to review
discovery materials, the district court did not issue a Certificate of Appealability
(“COA”) on that issue. A request to broaden a COA is considered de novo.
Mendez v. Knowles, 556 F.3d 757, 770 (9th Cir. 2009) (citations omitted). “A
habeas petitioner’s assertion of a claim [for obtaining or expanding a COA] must
make a substantial showing of the denial of a constitutional right.” Id. “There is
no general constitutional right to discovery in a criminal case,” Weatherford v.
Bursey, 429 U.S. 545, 846 (1977), and Branch concedes that his case does not fall
within one of the exceptions to Weatherford’s general rule. We therefore decline
to expand the COA to include this issue.
AFFIRMED.