                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 12 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-15526

              Plaintiff - Appellee,              D.C. Nos.    2:96-cr-00190-JAM-
                                                              GGM-1
  v.

JAMES ROY BARRON, Jr.,                           MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                       Argued and Submitted April 15, 2010
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**

       James Barron appeals the district court’s denial of his motion under 28

U.S.C. § 2255 to vacate his sentence. Barron claims he was denied his Sixth




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
Amendment right to effective counsel when his lawyer prevented him from

testifying on his own behalf.

       Barron has not shown ineffective assistance, because he failed to object

when his lawyer did not call him as a witness. See United States v. Nohara, 3 F.3d

1239, 1243-44 (9th Cir. 1993). The district court evidentiary hearing on his

ineffectiveness claim demonstrates that Barron was not afraid to assert himself in

court, as he fired his first lawyer on the eve of trial. Barron also testified on his

own behalf in two previous trials, leading to prior convictions, so he was well

aware of his right to testify.

       Barron has also failed to demonstrate that, even assuming there was some

failure on the part of his counsel, it resulted in prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). As the district court found, had Barron

testified, the government would have been able to impeach his testimony with

three prior felony drug convictions. See Dows v. Wood, 211 F.3d 480, 487 (9th

Cir. 2000). A confidential informant and police officer also both testified at trial to

witnessing Barron engage in drug deals.

       Barron’s claim that he was denied his right to testify is procedurally barred

because he failed to raise this claim on direct appeal. See United States v. Guess,

203 F.3d 1143, 1145 (9th Cir. 2000). A defendant waives his right to testify if he


                                            2
does not object before the verdict is read. See United States v. Pino-Noriega, 189

F.3d 1089, 1095 (9th Cir. 1999). Barron is, therefore, incorrect that this claim

required evidence from outside the trial court record and that he could not have

raised it on direct appeal. See Bousley v. United States, 523 U.S. 614, 621-22

(1998).

      AFFIRMED.




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