                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 29 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-35796

              Plaintiff - Appellee,               D.C. Nos.    1:09-cv-00055-BLW
                                                               1:07-cr-00182-BLW-
  v.                                              1

ELVEN JOE SWISHER,
                                                  MEMORANDUM*
              Defendant - Appellant.


                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                        Argued and Submitted May 16, 2014
                                 Portland, Oregon

Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.

       Defendant Elven Joe Swisher appeals the district court’s denial of his motion

to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 and moves this

court to expand the certificate of appealability to include claims of ineffective



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
assistance of counsel and the district court’s denial of Swisher’s motions for

discovery and a hearing. We have jurisdiction under 28 U.S.C. § 2253.1

      We deny Swisher’s motion to expand the certificate of appealability to

include Swisher’s claims of ineffective assistance of counsel because Swisher has

failed to make “a substantial showing of the denial of a constitutional right.” Id.

§ 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

      Swisher’s attorneys were not deficient in obtaining relevant documents,

because they obtained all of Swisher’s military and medical files, and Swisher’s

claim that further efforts by his attorneys would have turned up evidence

corroborating his account is wholly speculative. See Stenson v. Lambert, 504 F.3d

873, 889 (9th Cir. 2007). For the same reason, he is not entitled to discovery under

Rule 6 of the Federal Rules Governing § 2255 Proceedings for the United States

District Courts. See Calderon v. U.S. Dist. Ct., 98 F.3d 1102, 1106 (9th Cir. 1996).

      Swisher’s attorneys were not deficient in allowing Swisher only a limited

opportunity to testify, and Swisher waived this claim by not insisting on testifying




      1
        In a published opinion filed concurrently with this memorandum, we affirm
the district court’s denial of Swisher’s § 2255 motion on his claim that 18 U.S.C.
§ 704(a) is unconstitutional. United States v. Swisher, ___ F.3d ___ (9th Cir.
2014).

                                          2
further during trial. See United States v. Pino-Noriega, 189 F.3d 1089, 1094–95

(9th Cir. 1999).

      Swisher’s attorneys did not operate under an actual conflict of interest due to

their representation of David Hinkson in a criminal tax case because Swisher did

not establish that the Hinkson tax case was “substantially related” to Swisher’s

case, or that his attorneys “reveal[ed] privileged communications” or otherwise

divided their loyalties. Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988).

      Swisher’s claim that his attorneys’ performance was deficient because they

failed to call Brit Groom as a witness regarding Swisher’s DD-214 is without

merit, because it is undisputed that Groom would not be qualified to testify as to

the authenticity of the DD-214.

      Swisher’s attorneys were not deficient in failing to challenge the seating of a

member of the Army Special Forces as a juror because Swisher did not establish

any colorable claim of bias.

      Finally, Swisher has not established that his attorneys’ performance during

closing argument was deficient because the choice to use sarcasm as a rhetorical

device “did not fall[] below an objective standard of reasonableness.” See

Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003).




                                          3
      Because Swisher has not “alleged facts which, if true, might establish a right

to relief,” there was no need for an evidentiary hearing. United States v. Chacon-

Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000).

      AFFIRMED.




                                         4
