FILED
NOT FOR PUBLICATION JUN 08 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-55968
Plaintiff - Appellee, D.C. Nos. 2:07-cv-07813-DSF
2:01-cr-00633-DSF-1
v.
ABDALLAH M. DAIS, AKA Seal A, MEMORANDUM*
AKA Kamal Soudiha,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted June 6, 2012**
Pasadena, California
Before: KOZINSKI, Chief Judge, TROTT and THOMAS, Circuit Judges.
Abdallah Dais, previously found guilty by a jury in 2002 of felonies
involving precursor chemicals used to manufacture methamphetamine, appeals the
*
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).
district court’s denial of his motion pursuant to 28 U.S.C. § 2255 to vacate his
conviction and sentence. He claims his trial counsel rendered ineffective
assistance by failing to show him before trial a silent videotape of his participation
in one small episode in the conspiracy charge he faced. He claims he had no
knowledge of what was on the videotape because trial counsel failed to tell him
what was on it before the trial, and that, had he known of the content of the tape, he
would have pleaded guilty, thereby lessening his sentence.
Based on the record, the trial court did not believe this claim, finding it to be
“not credible.” The court concluded that, because Dais’s attorney had in fact told
him pretrial what was on the videotape and provided him with “all the discovery”
the government had turned over -- which included transcripts of extensive
incriminating intercepted telephone conversations -- her failure to show him the
silent video before trial did not fall below any objective standard of
reasonableness. Moreover, given the overwhelming quantity and quality of the
government’s evidence, the district court also concluded that Dais could not
demonstrate any prejudice whatsoever from not having seen the video until the
trial.
After a careful review of the record, we agree with the district court on both
counts. Dais’s claim is demonstrably not credible. Counsel told him what he faced
2
and that he should consider pleading guilty because the government had “a lot of
evidence” against him. Instead, he chose to go to trial. Even after he saw the
videotape during trial, at no time or in any way did he attempt to change his plea in
order to gain the sentencing benefit of acceptance of responsibility he now desires.1
Because Dais’s motion has no merit, we AFFIRM.
1
In the alternative, Dais asks us to remand for an evidentiary hearing.
Because he has not demonstrated specific facts, which, if true, would entitle him to
relief, this request has no merit. 28 U.S.C. § 2255(b); Shah v. United States, 878
F.2d 1156, 1160 (9th Cir. 1989).
3