                                NOT FOR PUBLICATION

                        UNITED STATES COURT OF APPEALS                        FILED
                                FOR THE NINTH CIRCUIT                         APR 13 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                           No. 10-15143

               Plaintiff - Appellee,                D.C. No. 2:08-cv-01401- PMP

 v.
                                                    MEMORANDUM*
CHRISTIAN FINZE,

              Defendant - Appellant.


                        Appeal from the United States District Court
                                 for the District of Nevada
                          Philip M. Pro, District Judge, Presiding

                         Argued and Submitted February 15, 2011
                                San Francisco, California

      Before: SCHROEDER, THOMAS, Circuit Judges, and BENNETT, District
                              Judge.**



        Defendant Christian Finze appeals the denial of his Motion Pursuant To 28

U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
              The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
Custody. Finze, a German national, seeks relief from his sentence of 120 months

and forfeiture of property, after his conviction by a jury on numerous charges.1

These charges arose from his operation of an internet business that provided drugs,

including drugs listed as controlled substances in the United States, from a

pharmacy in Germany to individuals in the United States. Although Finze had

pleaded guilty to a single count of conspiracy to distribute controlled substances,

pursuant to a plea agreement, which would likely have resulted in a sentence less

than half as long, he withdrew his guilty plea after he sought and received

appointment of replacement counsel. He now contends that replacement counsel

provided ineffective assistance with regard to withdrawal of his guilty plea, then

mounted a legally untenable defense and otherwise performed deficiently at trial.

The district court denied § 2255 relief on Finze’s ineffective assistance of counsel


      1
              Finze was convicted on all of the following charges: conspiracy to
defraud the United States in violation of 18 U.S.C. § 371 (Count 1); making and
using a false writing to be issued to an agency of the United States in violation of
18 U.S.C. §§ 1001 and 2 (Counts 2 through 8); conspiracy to distribute controlled
substances in violation of 21 U.S.C. § 846 (Count 9); conspiracy to import
controlled substances in violation of 21 U.S.C. § 963 (Count 10); distribution of
Schedule IV controlled substances in violation of 21 U.S.C. § 841(a)(1) and (b)(2)
and 18 U.S.C. § 2 (Count 11); distribution of Schedule III controlled substances in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2 (Count 12); and
money laundering in violation of 18 U.S.C. § 1957 (Counts 13 through 17). The
Second Superseding Indictment also included forfeiture allegations pursuant to 21
U.S.C. § 853(a) and (p) and 18 U.S.C. § 982(a)(1) and (b)(1), as well as notice of
various possible sentencing enhancements.
                                          2
claims, but issued a certificate of appealability pursuant to 28 U.S.C.

§ 2253(c)(1)(B) on all of them. We review the district court’s denial of a § 2255

motion de novo. United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003).

We affirm.

      1.     We consider first Finze’s claim of ineffective assistance of his

replacement counsel with respect to the withdrawal of his guilty plea and his

contention that the district court should have held an additional evidentiary hearing

on this claim. To prevail on an ineffective assistance of counsel claim, a habeas

petitioner must prove both deficient performance by counsel and prejudice to the

petitioner, but the court need only consider one of these requirements, if it is

dispositive of the claim. See Strickland v. Washington, 466 U.S. 668, 687-88, 697

(1984); Knowles v. Mirzayance, ___ U.S. ___, 129 S. Ct. 1411, 1419 (2009).

      The record shows that replacement counsel was not constitutionally deficient

in advising Finze concerning withdrawing his guilty plea. First, replacement

counsel discussed with Finze the dangers of withdrawing his plea and going to

trial, including the possibility that the government would file a superseding

indictment with additional charges carrying higher penalties and the pros and cons

of going forward with sentencing. Second, replacement counsel met with Finze

regarding the reasons that he wanted to withdraw his guilty plea; reviewed the


                                           3
records, transcripts, and other documents in the case relating to the entry of Finze’s

guilty plea; researched the law regarding withdrawal of the guilty plea; reviewed

discovery; and considered the likelihood of success at trial. Third, replacement

counsel reasonably concluded that Finze was adamant about withdrawing his guilty

plea, so that replacement counsel properly focused on whether there was a viable

legal basis for withdrawing Finze’s guilty plea. Finally, replacement counsel’s

motion to withdraw Finze’s guilty plea and his argument at the hearing on that

motion show that he had adequately prepared to address the grounds on which the

motion to withdraw the guilty plea was actually premised.

      To support his allegation that replacement counsel failed to advise him

adequately concerning withdrawal of his guilty plea, Finze seizes on statements in

replacement counsel’s affidavit that counsel believed that the decision about

whether or not to plead guilty is for the defendant, and that counsel did not

complete all of the research relevant to Finze’s possible trial defenses prior to

filing the motion to withdraw Finze’s guilty plea. However, neither statement

demonstrates that replacement counsel performed deficiently. See Jones v. Barnes,

463 U.S. 745, 751 (1983) (recognizing that the accused has the ultimate authority

to decide whether to plead guilty); see also Premo v. Moore, ___ U.S. ___, 131 S.

Ct. 733, 742 (2011) (urging caution in reviewing the performance of counsel at the


                                           4
pretrial stage of the proceedings when neither the prosecution nor the defense may

know with much certainty what course the case may take); Harrington v. Richter,

___ U.S. ___, 131 S. Ct. 770, 791 (2011) (“Strickland does not guarantee perfect

representation, only a ‘reasonably competent attorney.’” (quoting Strickland, 466

U.S. at 687 (internal quotation marks omitted)).

      Finze also argues that replacement counsel’s affidavit shows that he filed the

motion to withdraw Finze’s guilty plea after consultation with and at the direction

of prior counsel. That argument mischaracterizes replacement counsel’s

explanation that Finze was adamant about withdrawing his guilty plea even after

Finze had a long consultation with prior counsel, and is contrary to other record

evidence that replacement counsel did do independent research and did consult

with Finze prior to filing the motion to withdraw Finze’s guilty plea. Thus,

replacement counsel did not perform deficiently: he did not rely solely on prior

counsel’s assessment.

      Assuming, without deciding, that replacement counsel gave deficient advice

about the intent requirements of the charged offenses, we also consider whether

Finze is required to prove prejudice and whether he could do so, if required. Finze

cites to United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), to support his

contention that he should not be required to show prejudice. However, Gonzalez-


                                         5
Lopez is inapposite because that case dealt with a defendant’s right to choose his

lawyer. It did not deal with an ineffective assistance of counsel claim. In fact, the

Gonzalez-Lopez Court was aware of the difference between the two types of claims

and stated that “a violation of the Sixth Amendment right to effective

representation is not ‘complete’ until the defendant is prejudiced.” 548 U.S. at 147

(emphasis in the original) (citing Strickland, 466 U.S. at 685).

      Finze has not shown the required prejudice from counsel’s alleged

deficiency with respect to advice about intent requirements. The record contradicts

Finze’s contention that such allegedly faulty legal advice caused him to withdraw

his guilty plea. Rather, the transcripts of the proceedings relating to replacement of

counsel and the motion to withdraw Finze’s guilty plea conclusively show that

Finze was determined to withdraw his guilty plea before replacement counsel was

ever appointed on grounds that had nothing to do with replacement counsel’s

supposedly faulty advice about the intent requirements of the charged offenses.

Thus, he cannot show that it is “reasonably” or “substantially” likely that he would

not have withdrawn his guilty plea if replacement counsel had not allegedly

improperly advised him on the intent elements of the charged offenses. Richter,

___ U.S. at ___, 131 S. Ct. at 791-92.




                                          6
      Regarding Finze’s claims that the district court should have held an

evidentiary hearing on this ineffective assistance of counsel claim, the district court

did set a hearing on Finze’s § 2255 motion, but Finze made no effort to call

witnesses or to present any other evidence to support his claims at that hearing. No

additional evidentiary hearing was required to resolve a conflict between Finze’s

conclusory allegations and counsel’s affidavit concerning what advice, if any,

replacement counsel gave Finze concerning withdrawal of his guilty plea or the

effect of any advice about the law that replacement counsel gave Finze on his

decision to withdraw his guilty plea. United States v. Johnson, 988 F.2d 941, 945

(9th Cir. 1993) (explaining that conclusory allegations do not warrant an

evidentiary hearing on a § 2255 motion).

      Additionally, the judge who resolved Finze’s § 2255 motion also presided

over a hearing on Finze’s prior counsel’s motion to withdraw and replacement

counsel’s motion to withdraw Finze’s guilty plea, as well as the trial and Finze’s

sentencing. Because the issue was one of credibility, the judge had the discretion

to forego a hearing on Finze’s allegations and was entitled to rely on the record,

supplemented with discovery and documentary evidence, and his own notes,

recollections, and common sense. Shah v. United States, 878 F.2d 1156, 1159 (9th

Cir. 1989).


                                           7
      More importantly, as noted above, the record conclusively shows that

Finze’s determination to withdraw his guilty plea had nothing to do with

replacement counsel’s supposedly faulty advice about the intent requirements of

the charged offenses. 28 U.S.C. § 2255(b) (explaining that no hearing is required

if the record “conclusively show[s]” no entitlement to relief). Finze’s present

characterization of the reasons that he withdrew his guilty plea is revisionist,

contrary to the record, and, thus, patently frivolous. United States v. Mejia-Mesa,

153 F.3d 925, 931 (9th Cir. 1998) (explaining that no evidentiary hearing is

required if, in light of the record, the movant’s allegations are “palpably incredible

or patently frivolous”).

      Finally, no evidentiary hearing was required, because “the record

conclusively shows that [the] trial attorney was not ineffective.” United States v.

Burrows, 872 F.2d 915, 917 (9th Cir. 1989). The district court did not abuse its

discretion in not holding an evidentiary hearing on Finze’s claims regarding the

withdrawal of his guilty plea.

      2.     The central theme of Finze’s § 2255 Motion is that replacement

counsel gave him incorrect legal advice about and relied on an allegedly untenable

defense concerning the intent requirements for the charged offenses. Finze




                                           8
characterizes replacement counsel’s defense strategy as relying on Finze’s lack of

intent to break the law. The record conclusively shows otherwise.

      Replacement counsel did remark in his opening statement at trial that it was

never Finze’s intent to do anything other than to sell drugs legitimately on the

internet. Nevertheless, a fair reading of the record is that replacement counsel’s

primary strategy was to argue that a co-defendant was responsible for the illegal

conduct of the internet pharmaceutical business, not a defense based on Finze’s

lack of intent. Also, replacement counsel’s “intent” defense, as formulated in his

closing argument, was not based on Finze’s lack of intent to break the law. Rather,

replacement counsel asserted that “intent” was required for criminal responsibility,

that there are various intents for the crimes charged, “but most importantly the first

one, [was] the intent to defraud the United States Government,” and that the

evidence showed that Finze did not intend to defraud the United States

Government. This is a far cry from a defense based on the argument that Finze did

not intend to break the law, and constituted a reasonable strategic or tactical

approach to Finze’s defense. Strickland, 466 U.S. at 690-91. Thus, replacement

counsel did not perform deficiently in asserting an allegedly untenable “intent”

defense, and the lack of deficient performance is dispositive of this claim. Id. at

687-88, 697.


                                          9
      3.     We conclude that none of Finze’s other numerous claims of

ineffective assistance of counsel warrant relief. Indeed, all of the challenged

conduct falls within the realm of essentially unchallengeable strategic or tactical

decisions, after reasonable investigation, which we decline to second guess.

Strickland, 466 U.S. at 690-91. We also observe that Finze’s command of

English—as demonstrated by his participation in various proceedings and his

assertions on the record that he did not need an interpreter—was such that

replacement counsel did not perform deficiently in failing to seek an interpreter for

him. See Gonzalez v. United States, 33 F.3d 1047, 1048 (9th Cir. 1994) (holding

that a defendant whose answers were consistently responsive and never indicated

to the court that he was experiencing major language difficulties despite the

opportunities afforded to him was not entitled to an interpreter under the provisions

of the Court Interpreters Act). Thus, none of these alleged errors, individually or

cumulatively, would render the trial so fundamentally unfair as to warrant relief.

See Parle v. Runnels, 505 F.3d 922, 927-28 (9th Cir. 2007).

      4.     Finally, Finze asserts that the forfeiture order must be overturned in

light of the Supreme Court’s recent ruling in United States v. Santos, 553 U.S. 507

(2008), which he asserts held that forfeitable proceeds are properly defined as net

profits, not gross receipts. In United States v. Thiele, 314 F.3d 399, 400 (9th Cir.


                                          10
2002), we held that “§ 2255 is available to prisoners claiming the right to be

released from custody. Claims for others types of relief, such as relief from a

restitution order, cannot be brought in a § 2255 motion, whether or not the motion

also contains cognizable claims for release from custody.” 314 F.3d at 400.

Furthermore,

             [C]ognizable claims in a § 2255 motion do not run
             interference for non-cognizable claims. Claims seeking
             release from custody can be brought under § 2255;
             claims seeking other relief cannot. To determine whether
             a given claim is cognizable under § 2255, we focus on
             the relief sought in the claim itself, not on relief sought in
             other claims mentioned elsewhere in the motion.

Id. at 402; see also Mamone v. United States, 559 F.3d 1209, 1201 (11th Cir. 2009)

(following Thiele to hold that “the presence of a cognizable claim against [a

petitioner’s] custodial punishment does not make . . . non-cognizable claims more

amenable to our review”). Finze’s forfeiture claim is not a cognizable § 2255

claim, because it does not seek release from custody, and his other claims for

release from custody “do not run interference” for his non-cognizable forfeiture

claim. Thiele, 314 F.3d at 402.

      Nevertheless, Finze argues that United States v. Santos, 553 U.S. 507

(2008), approved the exercise of jurisdiction under § 2255 to challenge a forfeiture

judgment. Not so. Santos involved a post-conviction challenge to a money-


                                          11
laundering conviction, not a challenge to forfeiture. See 553 U.S. at 510; see also

United States v. Bush, 626 F.3d 527, 534 (9th Cir. 2010) (“In post-conviction

habeas proceedings, Santos challenged the propriety of his money-laundering

conviction, claiming his transactions were [mere proceeds, rather than profits].”).

      Because Finze’s forfeiture claim is limited to the constitutionality of his

forfeiture order, and is not a claim for release from custody, Thiele squarely blocks

his claim, notwithstanding the decision in Santos.

      AFFIRMED.




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