                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 19 2010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. 09-36056

              Plaintiff - Appellee,              D.C. Nos.    3:08-cv-00007-JWS
                                                              3:06-cr-00040-JWS
  v.

BROCK PURVIANCE,                                 MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                        Argued and Submitted July 27, 2010
                                Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       Brock Purviance appeals the district court’s denial of his motion to vacate

his sentence under 28 U.S.C. § 2255. As the facts are known to the parties, we

repeat them only as necessary to explain our decision.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                           I

      The only certified issue in this appeal is Purviance’s claim that he received

ineffective assistance of counsel during criminal proceedings. We reject this

claim. His argument that counsel failed properly to consult with him regarding an

appeal fails because Purviance and his attorney discussed the possibility of an

appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In any event, there

was no evidence in the record that Purviance actually instructed counsel to appeal.

Likewise, his claim that he was prejudiced by his lawyer’s failure to present the

strongest available evidence to rebut an enhancement of his sentence under

U.S.S.G. § 2A3.2(b)(2)(B) is flawed because Purviance’s lawyer adequately

researched the caselaw surrounding section 2A3.2(b)(2)(B) and reasonably

declined to call witnesses who would offer unpredictable testimony of uncertain

relevance and weight. Purviance cannot show that he was prejudiced when his

lawyer did not seek to have him admitted to a drug-treatment program because it is

speculative that he would have been selected. As for the FBI 302s, the reports of

interviews with Purviance’s victim and her friend taken almost two years after the

crime would have been inadequate to rebut the presumption of undue influence in

light of the strong, contemporaneous evidence that Purviance exerted such

influence over his victim. Finally, Purviance’s attorney did not err by failing to


                                          2
challenge the conditions of Purviance’s supervised release; instead, she made a

reasonable tactical decision to trade harsher supervised-release conditions for a

shorter prison sentence. See Strickland v. Washington, 466 U.S. 668, 689 (1984).

                                          II

      Purviance also raises several uncertified issues in his opening brief. See 9th

Cir. R. 22-1(e). We decline to expand the certificate of appealability to include

these issues.

                                         III

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




                                          3
