                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 9 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-35270

                Plaintiff-Appellee,             D.C. Nos.    3:15-cv-01082-HZ
                                                             3:13-cr-00064-HZ-01
 v.

CYRUS ANDREW SULLIVAN,                          MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                      Argued and Submitted October 6, 2017
                               Portland, Oregon

Before: PAEZ and BEA, Circuit Judges, and ANELLO,** District Judge.

      Cyrus Sullivan appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct the sentence he received after he pleaded

guilty to making a threatening communication in violation of 18 U.S.C. § 875(c).

We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We review de novo both a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
district court’s denial of a section 2255 motion, and a claim of ineffective

assistance of counsel. United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir.

2012). We affirm.

      The district court granted a certificate of appealability (“COA”) on the issue

of whether Sullivan’s trial counsel was ineffective in advising Sullivan to plead

guilty to a Superseding Information, which omitted the specific intent element of

18 U.S.C. § 875(c). To prevail on an ineffective assistance of counsel claim,

Sullivan must show that counsel’s representation fell below an objective standard

of reasonableness and that he was prejudiced as a result. Strickland v. Washington,

466 U.S. 668, 687-88 (1984). In order to satisfy the prejudice requirement,

Sullivan must show that “there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      We do not reach the issue of counsel’s performance, as Sullivan is unable to

demonstrate that he suffered prejudice. See Strickland, 466 U.S. at 697 (courts

may address the prejudice requirement first “[i]f it is easier to dispose of an

ineffectiveness claim on [that] ground”). First, Sullivan argues he suffered

prejudice because after pleading guilty, counsel did not file a motion to arrest

judgment pursuant to the then-existing Federal Rule of Criminal Procedure 34.

Sullivan did not raise this argument in his section 2255 motion, but rather raised it


                                            2                                     16-35270
for the first time in his post-judgment motions. The district court declined to issue

a COA regarding Sullivan’s motion for relief from judgment pursuant to Federal

Rule of Civil Procedure 60(b). Because Sullivan’s Rule 34 argument does not fall

within the narrow issue certified by the district court for appeal, this argument is

not properly before the Court. See United States v. Winkles, 795 F.3d 1134, 1142

(9th Cir. 2015) (holding a COA is required to appeal the denial of a Rule 60(b)

motion arising in a section 2255 proceeding).

      Second, Sullivan contends he was prejudiced because the Superseding

Information did not provide adequate notice of the requisite mental state for the

offense to which he pleaded guilty. The record, however, evidences that Sullivan

was repeatedly informed of the elements both before and during the plea hearing

and that he “underst[ood] the intent element of the crime to which a plea of guilty

[was] entered.” United States v. Bigman, 906 F.2d 392, 394 (9th Cir. 1990).

Accordingly, Sullivan has not shown that there is a reasonable probability that, but

for his attorney’s error, he would not have pleaded guilty and would have insisted

on going to trial. See Hill, 474 U.S. at 59.

      Sullivan further claims he was entitled to an evidentiary hearing on his

section 2255 motion. We review a district court’s denial of a request for an

evidentiary hearing for abuse of discretion. Sully v. Ayers, 725 F.3d 1057, 1067

(9th Cir. 2013). We conclude that the district court did not abuse its discretion by


                                           3                                    16-35270
denying Sullivan’s section 2255 motion without an evidentiary hearing because the

pleadings and record conclusively establish that Sullivan is not entitled to relief.

See 28 U.S.C. § 2255(b).

      Finally, Sullivan raises additional arguments that are not included in the

COA. “In federal habeas corpus proceedings, the exercise of appellate jurisdiction

is dependent entirely upon the issuance of a COA.” United States v. Grace, 526

F.3d 499, 522 (9th Cir. 2008) (en banc) (quoting Phelps v. Alameda, 366 F.3d 722,

726 (9th Cir. 2004)) (internal quotations and alterations omitted). We may expand

the COA, but “only if the applicant has made a substantial showing of the denial of

a constitutional right.” See Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014)

(quoting 28 U.S.C. § 2253(c)(2)). Because Sullivan has not made such a showing,

we decline to expand the COA.

      AFFIRMED.




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