                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 20 2010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. 09-17906

               Plaintiff - Appellee,             DC No. 2:05 cv-0711 PMP

  v.

WENDOLEN LEONARD HOWARD,                         MEMORANDUM *

               Defendant - Appellant.



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

                            Submitted December 6, 2010 **
                              San Francisco, California

Before:        COWEN,*** TASHIMA, and SILVERMAN, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
      Wendolen Howard appeals the district court’s denial of his motion for relief

under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

      We agree with the district court that Howard did not establish that his trial

counsel’s allegedly deficient performance caused him prejudice. The record makes

plain that Howard withdrew his guilty plea with full knowledge of the thirteen

incriminating recordings that the Government eventually used to convict him at

trial. Howard argues that had his counsel provided him with the remaining

recordings (the ones the Government never sought to use at trial), he would have

known that those recordings did not contain exculpatory material capable of saving

him at trial and, having thus lost any lingering hope of prevailing before a jury,

would have maintained his plea. This argument does not establish prejudice under

the “reasonable probability” standard. Styers v. Schriro, 547 F.3d 1026, 1030 (9th

Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 695 (1984)).

      Howard decided to withdraw his guilty plea and take his chances at trial

despite overwhelming evidence against him and despite his counsel’s strong advice

to the contrary. There is no reason to think Howard would have acted more

rationally after confirming that the remaining tapes did not contain a defense

panacea. Indeed, he does not explain what panacea the remaining tapes could

possibly have contained. His only suggestion is that he thought the other tapes


                                           2
might place the inculpatory material “in context,” but as his trial counsel points

out, admissions of guilt and blatant cover-up attempts resist contextualization. On

this record, the ineffective assistance of counsel claim fails for lack of prejudice.

See, e.g., United States v. Fry, 322 F.3d 1198, 1201 (9th Cir. 2003); Jackson v.

Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). We thus need not explore

Strickland’s other prong.

      AFFIRMED.




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