United States of America, Plaintiff-appellee, v. John Birges, Sr., Defendant-appellant, 951 F.2d 362 (9th Cir. 1991)

MEMORANDUM^** 

Birges' petition under 28 U.S.C. § 2255 presents four claims. Birges first argues that he received ineffective assistance of counsel at trial. To succeed, Birges must show that his counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that counsel's error affected the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Birges fails to satisfy either of these prongs. Counsel's failure to subpoena witnesses who supposedly would have testified in Birges' favor was a tactical decision we may not second-guess. Furthermore, Birges has not demonstrated a reasonable probability that the result of the proceedings would have been different had the witnesses been called.

Birges claims to have new evidence, but none of this alleged evidence raises any question about his guilt; therefore, it is not cognizable on federal habeas. Gordon v. Duran, 895 F.2d 610, 614-15 (9th Cir. 1990).

Birges contends that his presentence report was falsified. Birges' presentence report stated that he had been sentenced to 25 years' imprisonment in Siberia for espionage, but did not specify that he had been working as a spy for the United States Army Counter-Intelligence Corps. This omission was not materially inaccurate, and Birges has not shown that the district court relied on the Siberian imprisonment to calculate or enhance his sentence. See United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984). The omission was harmless.

As his final ground for relief, Birges states that " [t]he trial judge denied the fully extended cross examination of the government witnesses." Birges gives no supporting facts or argument to substantiate this claim. We therefore reject it.

AFFIRMED.