Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1989)

Michael OLMO, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 87-2361.

United States Court of Appeals, Ninth Circuit.

Submitted May 11, 1989.*Decided May 15, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


Michael Olmo appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Olmo contends that his sixth amendment right to effective assistance of counsel was violated because his trial counsel failed to interview Lydia Quintara, a potential rebuttal witness. Olmo also contends that the district court erred in denying his motion without an evidentiary hearing.1 We review de novo, United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986), and affirm.

Section 2255 requires the district court to hold an evidentiary hearing " [u]nless the motions and files and records conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. See also Rule 4(b), Rules Governing Section 2255 Proceedings. Courts may expand the record for considering section 2255 motions with discovery and documentary evidence. Blackledge v. Allison, 431 U.S. 63, 82 (1977). If this additional evidence conclusively shows that the prisoner is entitled to no relief, the district court may dismiss the motion without an evidentiary hearing. Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988).

To obtain relief based on ineffective assistance of counsel, a petitioner must demonstrate (1) that his attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made" and (2) prejudice. Butcher v. Marquez, 758 F.2d 373, 375-76 (9th Cir. 1985) (citing Strickland v. Washington, 466 U.S. 668, 686-87 (1984)). To demonstrate prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

The failure to interview a potential defense witness may constitute ineffective assistance of counsel. See Baumann v. United States, 692 F.2d 565, 581 (9th Cir. 1982). However, we agree with the district court's conclusion that the record fails to show that Olmo was prejudiced by his counsel's failure to interview Lydia. Her conclusory allegation that she would have contradicted her husband's testimony does not undermine our confidence in the outcome of Olmo's trial. See Strickland, 466 U.S. at 694.

Because we conclude that the record and additional evidence presented in the district court conclusively show that Olmo was entitled to no relief, we affirm the district court's denial of his section 2255 motion without an evidentiary hearing.