                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              JAN 22 2014

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

UNITED STATES OF AMERICA,                        No. 13-56526

              Plaintiff - Appellee,              D.C. Nos.    2:12-cv-04501-DSF
                                                              2:06-cr-00259-DSF-1
  v.

JOHN MCTIERNAN,                                  MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                           Submitted January 16, 2014**
                             San Francisco, California

Before: O’SCANNLAIN, GRABER, and NGUYEN, Circuit Judges.

       John McTiernan appeals the district court’s denial of relief under 28 U.S.C.

§ 2255. McTiernan argues that his conviction for perjury under 18 U.S.C. §

1623(c) was legally deficient under United States v. Jaramillo, 69 F.3d 388,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
390–92 (9th Cir. 1995). Alternatively, McTiernan maintains his prior counsel was

ineffective for failing to raise Jaramillo. Reviewing the district court’s denial of

relief de novo, White v. Martel, 601 F.3d 882, 883 (9th Cir. 2010) (per curiam), we

affirm.

      McTiernan presents his arguments based on Jaramillo as though in direct

proceedings. But his challenge is collateral, and under his plea agreement,

McTiernan waived “any right to bring a post-conviction collateral attack on the

convictions or sentence, except a post-conviction collateral attack based on a claim

of ineffective assistance of counsel . . . .” McTiernan’s waiver was unambiguously

stated and knowingly and voluntarily made, and so is valid and enforceable.

United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Even without the

waiver, all of McTiernan’s claims, except for ineffective assistance of counsel, see

Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005), are procedurally

defaulted because he failed to demonstrate the necessary “cause and actual

prejudice,” Bousley v. United States, 523 U.S. 614, 622 (1998), or “actual

innocence” of both the offenses of conviction and the charges that the government

forewent in plea negotiations, id. at 624, to excuse default.

      To prevail on his ineffective assistance of counsel theory, McTiernan must

show that “(1) counsel’s representation fell below the range of competence


                                          2
demanded of attorneys in criminal cases, and (2) ‘there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.’” Washington, 422 F.3d at 873 (quoting Hill v. Lockhart,

474 U.S. 52, 58–59 (1985)).

      McTiernan has made no attempt to show why Jaramillo was never raised by

counsel. Although he complains the district court speculated that strategic

considerations, rather than ignorance or inadvertence, might explain the omission,

ultimately it was McTiernan’s obligation to rebut the presumption of counsel’s

competence. Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008). This he did

not do. There is no evidentiary support for the allegation that counsel’s

performance was deficient.

      AFFIRMED.




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