                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 31 2012

                                                                         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. 09-15892

              Plaintiff - Appellee,               D.C. Nos.    5:04-cv-00823-RMW
                                                               94-cr-00003-RMW
  v.

PIUS AILEMEN,                                     MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Northern District of California
                 Ronald M. Whyte, Senior District Judge, Presiding

                             Submitted May 15, 2012 **
                              San Francisco, California

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.

       Pius Ailemen appeals the district court’s denial of his petition for habeas

corpus filed pursuant to 28 U.S.C. § 2255. Ailemen was convicted by a jury of

conspiracy to distribute heroin, engaging in a continuing criminal enterprise, and


        *
             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).
one count of distribution of heroin. Proceeding pro se, Ailemen argues that he was

denied his Sixth Amendment right to effective assistance of counsel based on

allegations that (a) counsel deprived him of his right to testify; (b) counsel made a

promise to the jury in their opening statement that they failed to support by

evidence; and (c) the hostility between defense counsel themselves and between

them and the court resulted in prejudice. This court reviews de novo a district

court’s denial of a § 2255 motion and for clear error any factual findings made by

the district court. United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir.

2010). We affirm the denial of Ailemen’s habeas petition.

      During 1991 and into early 1992, Ailemen headed a large international drug

conspiracy. The federal investigation that led to Ailemen’s indictment and eventual

conviction included various surveillance techniques, including wiretaps and an

undercover agent posing as a drug trafficker. Prior to trial, Ailemen filed a motion

to suppress the wiretap evidence, which was granted. Even without the suppressed

wiretaps, the government levied substantial evidence against Ailemen, including

the testimony of four of his couriers, the undercover agent involved in the

investigation, as well as the intermediary who dealt with the government agent.

      To prevail on a claim of ineffective assistance of counsel, a petitioner must

show that counsel’s performance was deficient and that the deficient performance


                                           2
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Further, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, . . . that course should be followed.” Id. at 697.

Ailemen first argues that his counsel denied him his right to testify on his own

behalf due to their disorganization and general lack of preparation. Although this

argument is undermined by several statements made by counsel at trial that the

reason Ailemen did not testify was for fear of impeachment, even if we assume that

Ailemen was prevented from testifying by his attorneys, he has failed to show that

he could have overcome the overwhelming evidence against him. Ailemen further

argues that he received ineffective assistance of counsel based on statements made

by his attorneys during opening arguments that they then failed to support with

evidence during his trial. Again, he has failed to satisfy the prejudice prong of the

Strickland test. Much of the “promised” evidence was in fact presented to the jury,

and even if all of the evidence Ailemen cites would have been admitted, it would

not have overcome the substantial evidence the government introduced. Finally,

Ailemen argues that the hostility between defense counsel themselves and between

them and the court resulted in prejudice. This claim was previously rejected on

direct appeal on the basis that the overwhelming evidence against Ailemen was

fatal to the claim and that, even if his attorneys were deficient in their performance,


                                           3
Ailemen suffered no prejudice. See United States v. Ailemen, 43 F. App’x 77, 83

(9th Cir. 2002). The panel on direct appeal did not clearly err in so holding. See

Snow-Erlin v. United States, 470 F.3d 804, 807 (9th Cir. 2006).

      Ailemen also raises two uncertified issues in his briefs pertaining to illegal

wiretap evidence introduced during the grand jury proceedings: (1) an ineffective

assistance of counsel claim, and (2) a direct challenge to the trial court’s denial of a

motion to dismiss the indictment. Under Ninth Circuit Rule 22-1(e), this Court

treats Ailemen’s briefing of the issue as a motion to enlarge the certificate of

appealability. In order to qualify for a certificate of appealability, Ailemen must

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

28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483 (2000). We deny

Ailemen’s motion to certify both of these issues as he has not shown prejudice by

the actions of counsel or the trial judge, and also because the Ninth Circuit panel

on direct appeal already found that presenting evidence linked to the illegal wiretap

to the grand jury, even if done in error, was harmless. Ailemen, 43 F. App’x at *81.

      AFFIRMED.




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