                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 14 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JAMES POSTLETHWAITE,                             No.    16-35487

              Petitioner-Appellant,              D.C. No. 2:15-cv-01673-JCC

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                     Argued and Submitted December 6, 2017
                              Seattle, Washington

Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.

      James Postlethwaite appeals the denial of a 28 U.S.C. § 2255 motion

alleging ineffective assistance of counsel in connection with his earlier conviction

for conspiracy to distribute marijuana in violation of 21 U.S.C § 841(b)(1)(A). The

facts are known to the parties and will not be repeated here unless necessary.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                           I

      Postlethwaite argues that he received ineffective assistance of counsel, in

violation of the Sixth Amendment, in connection with a motion to suppress certain

statements made to investigators after being arrested. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). The district court found that while

counsel’s performance was deficient, Postlethwaite was not prejudiced by any

deficient performance. Postlethwaite appeals that ruling.

                                           A

      We review a district court’s denial of a 28 U.S.C. § 2255 motion based on

ineffective assistance of counsel de novo. United States v. Rodrigues, 347 F.3d

818, 823 (9th Cir. 2003). Ineffective assistance claims are evaluated under the two-

prong test announced in Strickland. 466 U.S. at 687. To succeed on a Strickland

claim, a defendant must prove that (1) counsel’s performance was deficient, and

(2) the defendant was prejudiced by counsel’s deficient performance. Vega v.

Ryan, 757 F.3d 960, 965 (9th Cir. 2014).

                                           B

      Even had Postlethwaite’s counsel performed deficiently—which we assume

without deciding—“[t]he likelihood of a different result must be substantial, not

just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).


                                           2
      Postlethwaite does not meet this burden. See id. at 104. The government

introduced video surveillance that identified the delivery truck as a red Volvo

towing a white Hyundai trailer. At trial, the government offered the testimony of

three individuals who identified Postlethwaite as the driver. The witnesses also

testified that Postlethwaite operated the secret compartment in the truck, where the

drugs were stored.

      Furthermore, the government put forth evidence showing that, on multiple

occasions, Postlethwaite crossed the border driving the red Volvo shortly before

the drugs were delivered, by this same truck and trailer, to the distribution

warehouse in Kent, Washington.

      The crux of the prosecution’s case was proven by the three witnesses and

corroborated by the border-crossing records. The evidence adduced at trial, even

excluding Postlethwaite’s statements, renders no “reasonable probability that the

successful [suppression] motion would have affected the outcome.” Van Tran v.

Lindsey, 212 F.3d 1143, 1156 (9th Cir. 2000).

                                          II

      The judgment of the district court is AFFIRMED.




                                           3
