                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               MAY 29 2018
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

JUSTIN LYLE IZATT,                               No.    17-35130

             Petitioner - Appellant              D.C. Nos.
                                                 CV 13-00431-S-EJL
 v.                                              CR 10-00112-S-EJL

UNITED STATES OF AMERICA
                                                 MEMORANDUM*
             Respondent - Appellee


                 Appeal from the United States District Court
                            for the District of Idaho
             Edward J. Lodge, United States District Judge, Presiding

                        Argued and Submitted May 9, 2018
                               Seattle, Washington

Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM, Chief District
Judge.**

      Petitioner - Appellant Justin Izatt appeals the District Court’s denial of his 28

U.S.C. § 2255 petition without an evidentiary hearing. Izatt argues that his trial

counsel provided ineffective assistance by (1) waiving Izatt’s speedy trial rights


       *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

      **
         The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.
without his consent; (2) failing to investigate, communicate with Izatt, and prepare for

trial; (3) making and breaking a promise to the jury that Izatt would testify; (4) failing

to request a continuance before calling defense witness Mariah Pace; (5) failing to

fully develop defense testimony; and (6) committing various errors at the sentencing

phase. For the reasons that follow, we affirm the denial of Izatt’s habeas petition

without an evidentiary hearing.

      We review the denial of a § 2255 petition de novo, United States v. Reves, 774

F.3d 562, 564 (9th Cir. 2014), and the denial of an evidentiary hearing on the petition

for an abuse of discretion, United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.

2003). An evidentiary hearing is warranted if the petitioner makes “specific factual

allegations that, if true, state a claim on which relief could be granted.” United States

v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (quoting United States v. Schaflander,

743 F.2d 714, 717 (9th Cir. 1984)). A claim of ineffective assistance of counsel

requires a petitioner to show both that counsel’s performance was deficient and that

the deficient performance prejudiced the petitioner. Vega v. Ryan, 757 F.3d 960, 965

(9th Cir. 2014) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 687-88

(1984)).




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                                          I.

      With regard to counsel’s request for a continuance, Izatt fails to allege

prejudice.   If Izatt’s counsel had not agreed to continuances, Izatt would have

proceeded to trial on time, and there would have been no basis for a motion to dismiss

the charges. As such, Izatt has not alleged facts that show that, “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

                                          II.

      With regard to counsel’s failure to investigate, communicate with Izatt, and

prepare for trial, Izatt has not alleged specific facts that show deficient performance

or prejudice. He alleges no specific errors that stemmed from counsel’s failure to

spend time with him or failure to communicate with him. Counsel’s decisions

regarding investigation and interviewing of witnesses were trial strategy decisions,

and “strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable.” Id. at 690. Moreover, the additional

witnesses’ testimony would have been cumulative; thus, Izatt has not shown that he

was prejudiced. See Wong v. Belmontes, 558 U.S. 15, 22-23 (2009); Bible v. Ryan,

571 F.3d 860, 871 (9th Cir. 2009).




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                                         III.

      With regard to counsel’s broken promise to the jury that Izatt would testify,

Izatt has not alleged facts that show deficient performance or prejudice. Counsel

reasonably changed strategies after Pace testified that the methamphetamine was hers,

and Izatt has not alleged facts that show that the result of his proceeding would have

been different had he testified. Indeed, it is likely that Izatt’s testimony would have

been more prejudicial than his failure to take the stand.

                                         IV.

      With regard to counsel’s failure to request a continuance before calling Pace,

Izatt has not alleged facts that show prejudice. He alleges no facts that counsel could

have discovered during the continuance that would have rehabilitated Pace. Thus,

there is no reason to think that the result of the proceeding would have been different

had a continuance been sought.

                                          V.

      With regard to counsel’s failure to develop Pace’s testimony, Izatt has not

alleged facts that show deficient performance because Attorney Nelson was not

responsible for examining Pace. With regard to counsel’s failure to develop Brandon

Harvey’s testimony, Izatt has not alleged facts that show prejudice because the

referenced testimony was elicited by the United States and did not help Izatt’s case.


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                                         VI.

      With regard to counsel’s performance at the sentencing phase, Izatt has not

alleged prejudice. Izatt faced a mandatory minimum sentence of life imprisonment;

thus, even improved performance by counsel would not have changed the outcome at

sentencing.

      Because Izatt failed to make specific factual allegations that, if true, would

constitute ineffective assistance of counsel, the District Court did not err in denying

his § 2255 petition and did not abuse its discretion in denying an evidentiary hearing.

      AFFIRMED.




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