Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

MEMORANDUM^** 

Josias Luna-Hernandez appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence for unlawful reentry into the United States in violation of 8 U.S.C. § 1326.¹  Luna-Hernandez contends his conviction should be set aside because he was denied effective assistance of counsel in violation of the sixth amendment. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm.

To establish a claim of ineffective assistance of counsel in violation of the sixth amendment, a claimant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). It must be demonstrated that (1) counsel's actions were "outside the wide range of professionally competent assistance," and that (2) the defendant was prejudiced thereby. Id. at 687-90. We must give highly deferential scrutiny to counsel's performance. Id. at 689. We must eliminate the "distorting effects of hindsight" and not engage in after-the-fact second guessing of strategic decisions made by trial counsel. Id. A defendant can establish prejudice by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Luna-Hernandez asserts that his appointed trial counsel failed to recognize the significance of Immigration and Naturalization Service ("INS") Form I-274. The government introduced this form as part of its case-in-chief during Luna-Hernandez's trial. Luna-Hernandez argues that this form provided him with the defense that he had not been deported as charged, but instead had been granted voluntary departure from the United States. He contends that his trial counsel was ineffective for not recognizing and pursuing this defense. We disagree.

INS Form I-274 merely contains an illegal alien's request for voluntary departure in lieu of deportation. Furthermore, Luna-Hernandez never signed Form I-274, and even if he did, voluntary departure is subject to INS approval. Moreover, according to Luna-Hernandez's own testimony, the form played no part in his asserted belief that he had been granted voluntary departure. At the hearing on the motion to dismiss the indictment, Luna-Hernandez's counsel asked him, "You previously testified that you thought you were being voluntarily deported. Who, if anyone, was the reason for that understanding that you have?" Luna-Hernandez answered, "No, nobody. I was the one that just thought that that way." Luna-Hernandez was then asked, "Why was it that you thought you were being deported voluntarily? How did you come to that understanding?" Luna-Hernandez answered, "Because that's the way they done it two times before." It is obvious from this testimony that it was not Form I-274 that caused Luna-Hernandez to believe he was being granted voluntary departure. It was his experience of having been granted voluntary departure on two previous occasions that produced this belief.

Luna-Hernandez also contends his trial counsel was ineffective because he failed to file a timely appeal from the district court's order denying Luna-Hernandez's motion for a new trial. One of the grounds for the new trial motion was Luna-Hernandez's contention that the INS Form I-274 was Brady material which the government had failed to produce prior to trial.

Form I-274 was contained within an INS file which was offered to Luna-Hernandez's trial counsel 36 hours in advance of trial. His counsel, however, did not make use of the offer. In denying the motion for new trial, the district court found that the INS Form I-274 was not Brady material because it did not constitute evidence favorable to Luna-Hernandez and was not material to his defense. Luna-Hernandez's trial counsel did not find out about the district court's denial of the new trial motion for some five or six months. By then he determined that it was too late to file a notice of appeal.

In this appeal from the district court's denial of Luna-Hernandez's section 2255 motion, Luna-Hernandez argues that direct appeal from the district court's denial of the new trial motion "was the only avenue available for Luna-Hernandez to assert a defense which had been waived as a result of his [trial] attorney's gross negligence." Opening Brief at 7. This "defense" refers to Luna-Hernandez's trial counsel's failure to use INS Form I-274 in Luna-Hernandez's defense.

For purposes of this disposition we will assume, without deciding, that Luna-Hernandez's trial counsel was deficient in failing to file a timely appeal from the district court's order denying the new trial motion.² Even so, Luna-Hernandez fails to demonstrate that he suffered prejudice as a result of this omission. The "defense" that Luna-Hernandez argues his trial counsel waived by the alleged deficient representation was not a viable defense. It was a defense predicated upon INS Form I-274, which we have stated was no defense at all. Thus, Luna-Hernandez has failed to demonstrate that under the second Strickland prong there is a reasonable probability that, but for counsel's unprofessional error in not filing a timely appeal from the order denying the motion for new trial, the result would have been different. See Strickland, 466 U.S. at 694.

AFFIRMED.