Unpublished Disposition, 930 F.2d 28 (9th Cir. 1989)

No. 89-15347.

United States Court of Appeals, Ninth Circuit.

Before BEEZER and NOONAN, Circuit Judges, and SINGLETON,^**  District Judge.

MEMORANDUM^*** 

On December 29, 1983, three men assaulted Charlie, Nettie and Darlene Nelson in their home east of Chinle, Arizona on the Navajo Indian Reservation. The men brutally beat Charlie Nelson with their fists and a metal bar. He later died from the injuries sustained in the attack. The men also assaulted Nettie and Darlene Nelson but both were able to escape while the men were beating Charlie Nelson. One month later, Nettie Nelson identified Michael Mitchell as one of the assailants in a police line up. She also identified Ambrose Mitchell as one of her attackers. Likewise, Darlene Nelson identified both Michael Mitchell and Ambrose Mitchell at trial. The third man, Jerry Mitchell, was a juvenile and was prosecuted in a separate proceeding. All three men were brothers.

On October 18, 1984, Michael Mitchell was convicted of first-degree murder, assault by striking, beating, and wounding, and burglary. He was sentenced to life imprisonment for first-degree murder and lesser terms for the other offenses to run concurrent with his life sentence. We affirmed Mitchell's convictions and sentence in an unpublished opinion on December 2, 1985. On May 10, 1988, Mitchell filed a section 2255 motion to vacate his sentence. Mitchell alleged he had been denied effective assistance of counsel at trial because his attorney failed to investigate and pursue an alibi defense. On January 18, 1989, the district court adopted a magistrate's report denying Mitchell's motion without holding an evidentiary hearing. Mitchell timely appeals, claiming he was entitled to an evidentiary hearing.

Ineffective Assistance of Counsel.

To succeed on an ineffective assistance of counsel claim, Mitchell has the burden of proving that his attorney's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Mitchell argues his attorney's performance was deficient because he failed to investigate and raise an alibi defense at trial. When Mitchell's allegations are viewed against the record, however, it is clear his ineffective assistance of counsel claim fails.

In response to Mitchell's motion, the government submitted the affidavit of defense counsel Kenneth Freedman. Freedman stated that he discussed and explored possible defenses at several meetings with Mitchell and his father. He also hired a private investigator to assist in the preparation of Mitchell's defense. Freedman stated that neither Mitchell nor his father ever told him of anything that could provide the basis for an alibi defense. Further, no indication of an alibi was uncovered either by the private investigator or Freedman's own investigation. Freedman's decision not to pursue a defense which, after reasonable investigation, appeared to be unfounded does not render his performance deficient.

Evidentiary Hearing.

To warrant an evidentiary hearing, Mitchell was required to "make specific factual allegations which, if true, would entitle him to relief." Baumann v. U.S., 692 F.2d 565, 571 (9th Cir. 1982). Mitchell alleged that his attorney failed to investigate and verify his whereabouts on December 29, 1983. He makes no mention of any facts that would form the basis of his alibi defense. Instead Mitchell now argues that he thought he could wait until a hearing was held to present evidence. The argument is unconvincing. Mitchell, better than anyone else, knows his whereabouts on the evening Charlie Nelson was murdered. Yet he failed to even allege where he was that fateful evening. Nor did Mitchell allege that he ever informed his counsel he was not at the scene of the crime. Mitchell's contention that his attorney failed to investigate an alibi defense is an unsupported conclusory allegation. The district court did not abuse its discretion in finding the evidence against Mitchell's claim too compelling to warrant an evidentiary hearing.

AFFIRMED.