                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           SEP 09 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


ANDRANIK PETROSIAN,                         No.    14-55186

              Petitioner-Appellant,         D.C. Nos.     2:12-cv-06661-SVW
                                                          2:07-cr-00708-SVW-1
       v.

UNITED STATES OF AMERICA,                   MEMORANDUM*

              Respondent-Appellee.

                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted August 30, 2016
                              Pasadena, California

Before: SILVERMAN, FISHER and WATFORD, Circuit Judges.

      Adranik Petrosian appeals the district court’s denial of his 28 U.S.C. § 2255

habeas petition based on ineffective assistance of counsel. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      1. Petrosian’s trial counsel did not perform deficiently. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (an ineffective assistance of counsel claim


         *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
requires both deficient performance and prejudice). After the district court

questioned its decision to admit Petrosian’s incriminating proffer statements during

the government’s case-in-chief, counsel made an objectively reasonable strategic

decision – in consultation with his client – not to seek a mistrial. See id. at 689.

Under the plain language of the proffer agreement, Petrosian’s statements would

also have been admissible at a new trial, see United States v. Petrosian, 446 F.

App’x 826, 828 (9th Cir. 2011) (“[T]he government was allowed to introduce his

proffer statements under the agreement due to Petrosian’s lack of candor.”), and

the district court did not rule otherwise. No Ninth Circuit or Supreme Court

precedent, moreover, actually prohibited introduction of the statements during the

government’s case-in-chief. See United States v. Mezzanatto, 513 U.S. 196, 211

(1995) (Ginsburg, J., concurring); United States v. Rebbe, 313 F.3d 402, 406 n.1

(9th Cir. 2002). Additionally, the circuits that had considered the issue had

approved case-in-chief waiver provisions. See United States v. Burch, 156 F.3d

1315, 1321-22 (D.C. Cir. 1998); United States v. Young, 223 F.3d 905, 910-11 (8th




                                           2
Cir. 2000).1 Accordingly, objectively reasonable counsel could have concluded

Petrosian’s statements would likely be admitted at a new trial and, therefore, that a

new trial would not benefit Petrosian.2

      2. Because counsel’s performance was not deficient, we do not reach the

question of prejudice. See Strickland, 466 U.S. at 687.

      AFFIRMED.




      1
        The circuits that subsequently have considered the issue have also
approved case-in-chief admission of proffer statements. See United States v.
Mitchell, 633 F.3d 997, 1004 (10th Cir. 2011); United States v. Sylvester, 583 F.3d
285, 288-94 (5th Cir. 2009); United States v. Hardwick, 544 F.3d 565, 569-71 (3d
Cir. 2008).
      2
         Although we conclude counsel’s decision not to seek a mistrial accords
with an objectively reasonable understanding of the law at the time of Petrosian’s
trial, we do not reach the question, left unanswered in Rebbe, of the enforceability
of waiver provisions that permit the government to introduce proffer statements
during its case-in-chief.

                                          3
