                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAR 03 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 08-35853

             Plaintiff - Appellee,               D.C. Nos. 3:04-cv-01213-HA
                                                             3:98-cr-00208-HA
  v.

BYRON VAN BRANCH, Jr., AKA Muff,                 MEMORANDUM *
AKA John Macell,

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Ancer L. Haggerty, District Judge, Presiding

                     Argued and Submitted December 9, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       Byron Branch, Jr., (“Branch”) was convicted in federal court of 31 counts of

various drug trafficking, money laundering, and related conspiracy offenses. He

was sentenced to the statutory mandatory minimum of life imprisonment. Both his

conviction and his sentence were upheld on appeal. Branch moved to set aside his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction pursuant to 28 U.S.C. § 2255. The district court denied the motion.

Branch timely appealed. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253, and we affirm.

      “A district court’s denial of a petition for writ of habeas corpus is reviewed

de novo.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006). The Sixth

Amendment guarantees a criminal defendant’s right to the effective assistance of

counsel. Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam). This right is

violated when i) defense counsel’s performance falls below an objective standard

of reasonableness under prevailing professional norms, and ii) counsel’s errors

seriously prejudice the defendant. Strickland v. Washington, 466 U.S. 668, 687

(1984). To show prejudice, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

      Branch was not prejudiced by his counsel’s failure to present a diminished

capacity defense or witnesses supporting such a defense. Although the government

alleged that Branch participated in a conspiracy that involved the distribution of

hundreds of kilograms of cocaine, an amount of only five kilograms of cocaine is

sufficient to trigger the statutory mandatory minimum life sentence Branch

received. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). While a diminished capacity
defense might cast doubt on Branch’s ability to foresee some effects of the

conspiracy in which he participated, such a defense would not rebut the

overwhelming evidence presented by the government at trial showing that Branch

personally participated in the purchase and distribution of between five and eleven

kilograms of cocaine.

      The district court correctly denied Branch’s Sixth Amendment conflict of

interest claim without a hearing. “The district court may deny a section 2255

motion without an evidentiary hearing only if the movant’s allegations, viewed

against the record, either do not state a claim for relief or are so palpably incredible

or patently frivolous as to warrant summary dismissal.” United States v. Mejia-

Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (citations omitted). Branch’s allegation

that his attorney did not pursue a misconduct hearing against the government with

appropriate vigor, possibly because the attorney was intimidated by government

counsel, is speculative. Branch’s allegation that his attorney chose to delay

obtaining a SPECT scan due to intimidation is frivolous given his attorney’s valid

reasons for delaying the scan, including his concern that a negative scan would

harm Branch’s case.

      As to the failure to call Branch’s girlfriend as a witness, there was no failure

of effective representation. Branch’s lawyer decided not to call her because he

concluded that doing so could result in the introduction of evidence that Branch
had acted violently towards her, and that evidence would prejudice Branch’s

overall defense. This strategic determination was not objectively unreasonable.

      Finally, as to Branch’s claims regarding restrictions on his ability to review

discovery materials, the district court did not issue a Certificate of Appealability

(“COA”) on that issue. A request to broaden a COA is considered de novo.

Mendez v. Knowles, 556 F.3d 757, 770 (9th Cir. 2009) (citations omitted). “A

habeas petitioner’s assertion of a claim [for obtaining or expanding a COA] must

make a substantial showing of the denial of a constitutional right.” Id. “There is

no general constitutional right to discovery in a criminal case,” Weatherford v.

Bursey, 429 U.S. 545, 846 (1977), and Branch concedes that his case does not fall

within one of the exceptions to Weatherford’s general rule. We therefore decline

to expand the COA to include this issue.

      AFFIRMED.
