United States of America, Plaintiff-appellee, v. Joann Omectin, Defendant-appellant, 103 F.3d 143 (9th Cir. 1996)

MEMORANDUM^** 

JoAnn Omectin, a federal prisoner, appeals pro se the district court's denial of her 28 U.S.C. § 2255 motion. Omectin contends that: (1) the district court erred by refusing to grant her a downward departure based on her tragic childhood and lack of youthful guidance; (2) the district court erred when it sentenced her as a career offender; and (3) she received ineffective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo a district court's decision on a section 2255 motion, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and we affirm.

Omectin contends that the district court erred by refusing to depart downwards based on her tragic childhood and youthful lack of guidance.¹  We expressly rejected this claim in Omectin's direct appeal. See United States v. Omectin, No. 92-50748 (9th Cir. Nov. 18, 1993) (unpublished memorandum disposition). Accordingly, we will not review that claim in this appeal. See United States v. Redd, 759 F.2d 699, 700-01 (9th Cir. 1985) (per curiam); see also Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975).

Omectin contends that the district court erred by sentencing her as a career offender because: (1) her crime of conviction was not a "crime of violence" for purposes of U.S.S.G. § 4B1.1; (2) the court improperly relied upon a prior state conviction; and (3) the court relied upon false sentencing information in determining she was a career offender. Omectin has waived these claims of non-constitutional sentencing error by failing to raise them in her direct appeal. See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994).

Finally, Omectin contends her trial counsel was ineffective for failing to challenge the district court's application of the career offender provision, failing to warn her she could be sentenced as a career offender, and failing to object to incorrect portions of the presentence report.²  She also contends that appellate counsel was ineffective for failing to raise these issues on direct appeal. These contentions lack merit because Omectin cannot show prejudice. See Strickland v. Washington, 466 U.S. 668, 688 (1984).

First, contrary to her assertions, her instant bank robbery conviction and her two prior bank robberies qualify as "crime [s] of violence" for career offender purposes. See U.S.S.G. § 4B1.2, comment n. 2. Second, there is no prohibition against using state felony convictions to classify a defendant as a career offender. See U.S.S.G. § 4B1.1. Omectin's contention that she was never told she could be sentenced as a career offender is belied by the record; she was expressly informed of the possibility in her plea agreement. Finally, the record belies Omectin's contention that the sentencing court was presented with false information regarding her criminal history. Omectin is mistaken when she alleges defense counsel told the court Omectin had been convicted of manslaughter at age 17. The sentencing transcript shows that Omectin's counsel was at that moment discussing the criminal history of a defendant from a published case he considered relevant. With regard to Omectin's challenges to the presentence report, she has failed to identify any inaccuracies that would have any bearing on her sentence. Accordingly, because Omectin has failed to show prejudice, her ineffectiveness claim was properly rejected by the district court. See Strickland, 466 U.S. at 697; see also Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (applying same standard to appellate representation).³ 

AFFIRMED.⁴