United States of America, Plaintiff-appellee, v. Betina Kyle, Defendant-appellant, 145 F.3d 1342 (9th Cir. 1998)

MEMORANDUM^* 

Betina Kyle, a federal prisoner, appeals pro se the district court's denial of her 28 U.S.C. § 2255 motion challenging her jury conviction and sentence for making fraudulent statements while acting as a revenue officer in violation of 26 U.S.C § 7214(a) (7). Kyle contends that she received ineffective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo a district court's denial of a section 2255 motion and a determination that a prisoner was not denied effective assistance of counsel. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994). We affirm.

In order to prevail on a claim of ineffective assistance, a defendant must show both that her counsel's performance was deficient and that this prejudiced her case. See Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989).

Kyle's contention that counsel was ineffective for failing to conduct a diligent search for or present evidence of a key witness lacks merit because she has failed to make any showing that such a witness existed, and there was ample evidence that she forged documents to create this person. See id. at 688.

Kyle's contention that counsel was ineffective for failing to produce financial records in support of the suppression motion lacks merit because this Court held in Kyle's direct appeal that there was probable cause for the warrant absent these records. See United States v. Kyle, No. 95-50232, unpublished disposition memorandum (9th Cir. Jul. 24, 1996); see also Stein v. United States, 390 F.2d 625, 626 (9th Cir. 1968) (stating that issues decided on direct appeal may not be revisited in section 2255 motion). Thus, Kyle has failed to show any prejudice from counsel's alleged error. See Strickland, 466 U.S. at 697 (stating that failure to show prejudice alone is fatal to ineffective assistance claim).

Kyle's contention that counsel failed to object in a timely manner to the district court's admission of evidence seized from her home is belied by the record. The record reveals that counsel argued extensively against the introduction of all of the evidence seized from Kyle's home.¹  Accordingly, counsel's performance was not deficient. See Strickland, 466 U.S. at 688.

Kyle also contends that counsel failed to present a key witness or an affidavit from the key witness stating that Kyle had the authority to access his IRS account. This argument lacks merit because counsel provided this information in the suppression motion, stating that Kyle was authorized to access taxpayer accounts, including that of Billy Richards, and this information was not material to the issuance of the warrant. Thus, Kyle has failed to show prejudice from her attorney's failure to present this same information through a witness or in affidavit form. See id. 466 U.S. at 697.

Kyle's contention that counsel failed to object to the variance between the district court's written order denying the suppression motion and the court's oral pronouncement at the suppression hearing lacks merit because Kyle has failed to demonstrate "a reasonable probability that, but for "this alleged error," the result of the proceeding would have been different." See id., 466 U.S. at 694.

Because the record affirmatively manifests the invalidity of Kyle's claims, the district court did not abuse its discretion by refusing to hold an evidentiary hearing. See 28 U.S.C. § 2255 (1995); Baumann v. United States, 692 F.2d 565, 570-71 (9th Cir. 1982).

AFFIRMED.