                                                                            FILED
                              NOT FOR PUBLICATION                           OCT 17 2013

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



                              FOR THE NINTH CIRCUIT


    MASON JAMES HENRY,                            No. 11-17363

                 Petitioner - Appellant,          D.C. Nos.    2:10-cv-02776-JAT
                                                               2:08-cr-01377-JAT-2
     v.

    UNITED STATES OF AMERICA,                     MEMORANDUM*

                 Respondent - Appellee.


                      Appeal from the United States District Court
                               for the District of Arizona
                   James A. Teilborg, Senior District Judge, Presiding

                          Argued & Submitted October 8, 2013
                               San Francisco, California

Before: N.R. SMITH and NGUYEN, Circuit Judges, and QUIST, Senior District
Judge.**

          We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 to review the denial

of Mason James Henry’s 28 U.S.C. § 2255 habeas petition. Reviewing the district



*
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
      The Honorable Gordon J. Quist, Senior District Judge for the U.S. District
Court for the Western District of Michigan, sitting by designation.
court’s denial of the habeas petition de novo, United States v. Manzo, 675 F.3d

1204, 1209 (9th Cir. 2012), we affirm.

      1. Henry’s plea-agreement counsel did not have a duty to investigate

Henry’s mental health, because there was no evidence to suggest Henry was

impaired. See Doe v. Woodford, 508 F.3d 563, 569 (9th Cir. 2007). Counsel’s

disclosure to the court that Henry understood the proceedings even though he

sometimes took a little longer to process things was insufficient to trigger the duty

to investigate Henry’s mental impairment. See id.

      Even if counsel were ineffective by not investigating Henry’s mental health,

the plea agreement would still be valid. Henry has offered no evidence that an

investigation into his mental health would have changed the outcome of the plea

agreement. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). Instead, Henry

speculates that there might be something in his medical, school, and family records

that indicates he is mentally impaired. “Such speculation is plainly insufficient to

establish prejudice.” Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir. 2008).

      2. Assuming failure on the part of counsel to inform Henry of the maximum

possible sentence he could receive, Henry was not prejudiced. See Gonzalez v.

United States, 33 F.3d 1047, 1051-52 (9th Cir. 1994). At the plea hearing, Henry

told the court he was satisfied with his attorney’s performance. The court told


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Henry that he could be imprisoned for a term of up to 25 years, which was the

maximum sentence Henry could have received. Henry told the court that he

understood the sentencing terms.

      3. We decline to extend the Certificate of Appealability (COA) to include

Henry’s claim that 18 U.S.C. § 1153 is unconstitutionally vague. See 9th Cir. R.

22-1(e). “[M]erely because the term ‘Indian’ has been judicially defined on a case-

to-case basis does not render § 1153 impermissibly vague.” United States v.

Broncheau, 597 F.2d 1260, 1264 (9th Cir. 1979).

      4. We decline to extend the COA to include Henry’s claims that the plea

agreement was insufficient to support his guilty plea. In the plea agreement

context, “[a]lleging that [Henry] was an Indian was sufficient for purposes of

federal jurisdiction under § 1153. Further refinement was not required.”

Broncheau, 597 F.2d at 1263. The elements of the crime (with which Henry was

charged) were found in the plea agreement (which Henry signed) and reviewed by

the court with Henry at the plea hearing. Moreover, the factual allegations

contained in the plea agreement and reviewed with Henry by the court at the plea

hearing were sufficient to properly inform Henry of the nature and elements of the

crime. Thus, the constitutional requirements of a plea agreement were met. See

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005).


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The judgment of the district court is AFFIRMED.




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