FILED
NOT FOR PUBLICATION
DEC 14 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES POSTLETHWAITE, No. 16-35487
Petitioner-Appellant, D.C. No. 2:15-cv-01673-JCC
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted December 6, 2017
Seattle, Washington
Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.
James Postlethwaite appeals the denial of a 28 U.S.C. § 2255 motion
alleging ineffective assistance of counsel in connection with his earlier conviction
for conspiracy to distribute marijuana in violation of 21 U.S.C § 841(b)(1)(A). The
facts are known to the parties and will not be repeated here unless necessary.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
Postlethwaite argues that he received ineffective assistance of counsel, in
violation of the Sixth Amendment, in connection with a motion to suppress certain
statements made to investigators after being arrested. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). The district court found that while
counsel’s performance was deficient, Postlethwaite was not prejudiced by any
deficient performance. Postlethwaite appeals that ruling.
A
We review a district court’s denial of a 28 U.S.C. § 2255 motion based on
ineffective assistance of counsel de novo. United States v. Rodrigues, 347 F.3d
818, 823 (9th Cir. 2003). Ineffective assistance claims are evaluated under the two-
prong test announced in Strickland. 466 U.S. at 687. To succeed on a Strickland
claim, a defendant must prove that (1) counsel’s performance was deficient, and
(2) the defendant was prejudiced by counsel’s deficient performance. Vega v.
Ryan, 757 F.3d 960, 965 (9th Cir. 2014).
B
Even had Postlethwaite’s counsel performed deficiently—which we assume
without deciding—“[t]he likelihood of a different result must be substantial, not
just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
2
Postlethwaite does not meet this burden. See id. at 104. The government
introduced video surveillance that identified the delivery truck as a red Volvo
towing a white Hyundai trailer. At trial, the government offered the testimony of
three individuals who identified Postlethwaite as the driver. The witnesses also
testified that Postlethwaite operated the secret compartment in the truck, where the
drugs were stored.
Furthermore, the government put forth evidence showing that, on multiple
occasions, Postlethwaite crossed the border driving the red Volvo shortly before
the drugs were delivered, by this same truck and trailer, to the distribution
warehouse in Kent, Washington.
The crux of the prosecution’s case was proven by the three witnesses and
corroborated by the border-crossing records. The evidence adduced at trial, even
excluding Postlethwaite’s statements, renders no “reasonable probability that the
successful [suppression] motion would have affected the outcome.” Van Tran v.
Lindsey, 212 F.3d 1143, 1156 (9th Cir. 2000).
II
The judgment of the district court is AFFIRMED.
3