NOT FOR PUBLICATION FILED
APR 19 2016
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-55682
Plaintiff -Appellee, D.C. No. 8:10-cv-00995-DOC
v.
MEMORANDUM*
EDDIE LEE FRANKLIN,
Defendant- Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, Presiding District Judge, Presiding
Argued and Submitted April 5, 2016
Pasadena, California
Before: FERNANDEZ and BEA, Circuit Judges, and SETTLE, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for the
Western District of Washington, sitting by designation.
Appellant Eddie Lee Franklin (“Franklin”) appeals the denial of his motion
to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The
district
court granted a certificate of appealability on the issue of whether Franklin’s trial
or
appellate counsel provided ineffective assistance under Strickland v. Washington,
466 U.S. 668 (1984). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253. We affirm.
To establish ineffective assistance of counsel, Franklin “must show both that
his counsel’s performance was deficient and that the deficient performance
prejudiced his defense.” Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing
Strickland, 466 U.S. at 687). When a petitioner alleges ineffectiveness of
counsel’s assistance, he or she must show not just what counsel could have done
differently, but that counsel’s representation fell below an objective standard of
reasonableness. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (citing
Strickland, 466 U.S. at 687–88). Counsel is presumed, with high deference, to
have provided effective assistance. Strickland, 466 U.S. at 689. Courts must not
simply give attorneys the benefit of the doubt, but must “affirmatively entertain the
range of possible reasons . . . counsel may have had for proceeding as they did.”
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Cullen v. Pinholster, 563 U.S. 170, 195 (2011) (internal quotation marks omitted).
“Mere criticism of a tactic or strategy” alone is not sufficient to show that
counsel’s performance was deficient. Gustave v. United States, 627 F.2d 901, 904
(9th Cir. 1980).
In this case, Franklin fails to show that either his trial or appellate counsel’s
performance fell below an objective standard of reasonableness. While Franklin’s
counsel could have presented an argument that Franklin’s prior offenses were not
predicate offenses for purposes of the Sentencing Guideline’s career offender
enhancement, U.S.S.G. § 4B1.1, there was no Ninth Circuit authority for such a
proposition and all of the out-of-circuit authority was decided against it. In such a
legal landscape, it is not objectively deficient performance to forgo a legal
argument that Franklin’s prior offenses potentially do not qualify as predicate
offenses. Moreover, Franklin has failed to overcome the strong presumption that
his counsel made a strategic decision in light of the facts and circumstances of the
case. Therefore, Franklin is not entitled to relief under § 2255.
AFFIRMED.
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