                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 18-35436

                Plaintiff-Appellee,             D.C. Nos.    1:16-cv-00442-WFN
                                                             1:12-cr-00093-WFN-1
 v.

MATTHEW HUTCHESON,                              MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                            for the District of Idaho
                 Wm. Fremming Nielsen, District Judge, Presiding

                             Submitted July 15, 2019**

Before:      SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

      Matthew Hutcheson appeals pro se from the district court’s order denying

his 28 U.S.C. § 2255 motion challenging his conviction and 210-month sentence

for wire fraud, in violation of 18 U.S.C. § 1343. We have jurisdiction under 28

U.S.C. § 2253. We review de novo the district court’s denial of a section 2255


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion, see United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012), and we

affirm.

      Hutcheson contends that trial counsel was constitutionally ineffective for

failing to investigate and present the “ERISA defense” theory advanced by

Hutcheson. The record reflects that trial counsel understood and thoroughly

investigated this theory but concluded that (1) the theory could not be corroborated

adequately, and (2) the more effective trial strategy would be to argue that

Hutcheson lacked the intent to defraud. This did not amount to constitutionally

deficient performance. See Strickland v. Washington, 466 U.S. 668, 690(1984);

(“[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable.”).

      Hutcheson also contends that appellate counsel was constitutionally

ineffective on direct appeal for failing to cite United States v. Evans, 728 F.3d 953

(9th Cir. 2013), when challenging the district court’s exclusion of documentary

evidence of “irrevocable trust receipts.” Because Evans is inapposite, counsel’s

failure to cite and argue it was not objectively unreasonable. See Strickland, 466

U.S. at 687-88; see also Smith v. Robbins, 528 U.S. 259, 288 (2000) (presumption

of effective assistance of appellate counsel is generally overcome “only when

                                          2                                    18-35436
ignored issues are clearly stronger than those presented”).

        We treat Hutcheson’s briefing of additional claims as a motion to expand the

certificate of appealability. So treated, the motion is denied. See 9th Cir. R. 22-

1(e); Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999).

        Hutcheson’s motion to supplement the record is denied. The Clerk shall

strike Attachments A, B, and C at Docket Entry No. 14-2 and the material at

Docket Entry No. 19. The motion to seal at Docket Entry No. 14-1 is denied as

moot.

        Hutcheson’s motion for judicial notice is denied.

        AFFIRMED.




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