United States of America, Plaintiff-appellee, v. Ernest Barragan Lopez, Defendant-appellant, 988 F.2d 124 (9th Cir. 1993)

MEMORANDUM^** 

Ernest Barragan Lopez, a federal prisoner, appeals the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. This case involves a series of robberies and extortions to benefit West Coast Metallics Industries, a metal refining company owned by Lopez's codefendant Paula Nadir. Lopez was convicted of conspiracy in violation of 18 U.S.C. § 371, two counts of obstruction of interstate commerce by robbery in violation of 18 U.S.C. § 1951, two counts of collection of extensions of credit by extortionate means in violation of 18 U.S.C. § 894, and racketeering in violation of 18 U.S.C. § 1962. We affirmed the conviction on direct appeal. United States v. Lopez, 803 F.2d 969 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987).

Lopez contends that he was denied the right to testify and received ineffective assistance of counsel because his trial attorney did not inform him of the district court's decision to exclude prior convictions. He contends that he received ineffective assistance of counsel on direct appeal because his appellate attorney did not adequately address the admissibility of coconspirator statements. We have jurisdiction under 28 U.S.C. § 2255, and we affirm.

* Right to Testify

Lopez contends that the district court erred by denying, without an evidentiary hearing, his claims that he was denied the right to testify and received ineffective assistance of counsel because his attorney failed to inform him of the district court's decision to exclude prior convictions. This contention lacks merit.

We review de novo the denial of a section 2255 motion. United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990). The district court may deny a section 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; cf. Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (per curiam) (issues of credibility usually require an evidentiary hearing).

A criminal defendant has a constitutional right to testify. United States v. Martinez, 883 F.2d 750, 754 (9th Cir. 1989) (citing Rock v. Arkansas, 483 U.S. 44, 49 (1987)), vacated on other grounds, 928 F.2d 1470 (9th Cir.), cert. denied, 111 S. Ct. 2886 (1991). Waiver of this right must be intentional. Id. at 756. Nevertheless, because it is primarily counsel's responsibility to advise a defendant on whether to testify, waiver may be presumed from the defendant's conduct and a silent record regarding requests to testify. Id. at 757, 760; see also United States v. Yee Soon Shin, 953 F.2d 559, 561 (9th Cir. 1992) (district court has no duty to advise defendant of right to testify); United States v. Edwards, 897 F.2d 445, 446-47 (9th Cir.) (even where defendant claims ignorance of right to testify, silent record establishes waiver), cert. denied, 111 S. Ct. 560 (1990); Martinez, 883 F.2d at 761 (" [t]o hold that a defendant may abide by his lawyer's advice and not take the stand and then invalidate the trial because he so acted is not fair to the government").

Lopez does not claim that he was unaware of his right to testify; he claims that his attorney persuaded him not to testify by concealing the district court's ruling regarding the prior convictions. Accordingly, his claim is one of ineffective assistance of counsel. See Martinez, 883 F.2d at 761.

To establish ineffective assistance of counsel, a defendant must establish that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption that an attorney's conduct falls within "the wide range of reasonable professional assistance," and an attorney's tactical decisions are essentially unreviewable. Id. at 689-90; United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied, 474 U.S. 979 (1985). To establish prejudice, the defendant must show that there is a reasonable probability that but for counsel's errors, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 687.

The district court found that Lopez's attorney Chester Brown informed him of the evidentiary ruling and therefore provided effective assistance.¹  See Strickland, 466 U.S. at 687. The government concedes that this ruling could not properly be made without an evidentiary hearing. The district court also found that Lopez did not establish that his failure to testify prejudiced his defense. See id. We affirm for this reason.

Lopez states that had he testified, he would have denied his involvement in any of the crimes. He contends that this testimony would have contradicted government informant Daniel Mandel's testimony, which was the only evidence against him.

As we found on direct appeal, other evidence corroborated Mandel's testimony as to the "Wilkinson robbery." Lopez, 803 F.2d at 973. We also found that the defendants "presented extensive evidence impeaching Mandel. The jury was aware of the challenges to Mandel's credibility; nevertheless, it believed him." Id. In these circumstances, Lopez has not established a reasonable probability that his testimony would have led to his acquittal. See Strickland, 466 U.S. at 687.

Accordingly, we affirm the district court's denial of Lopez's claims regarding his failure to testify.

II

Assistance of Appellate Counsel

Lopez contends that his appellate attorney Daniel Lavery provided ineffective assistance by failing adequately to argue that the district court erred by admitting Mandel's testimony concerning Nadir's statements about Lopez's involvement in a robbery of gold on December 8, 1980. He contends that Lavery should have argued that the testimony was not admissible as coconspirator's statements under Fed.R.Evid. 801(d) (2) (E) because the government used only the statements themselves to establish Lopez's participation in a conspiracy with Nadir. See United States v. Gordon 844 F.2d 1397, 1402 (9th Cir. 1988) (rule that "there must be some evidence, aside from the proffered statements, of the existence of the conspiracy and the defendant's involvement" remained law of this circuit after Bourjaily v. United States, 483 U.S. 171 (1987)). Whether or not Lavery raised this issue, we considered it and found that Mandel's testimony about the December 8 robbery and other matters was sufficient to establish Lopez's participation in the conspiracy. See Lopez, 803 F.2d at 974. Accordingly, Lopez has not established ineffective assistance of appellate counsel. See Strickland, 466 U.S. at 687.

AFFIRMED.