                             NOT FOR PUBLICATION                            FILED
                                                                            APR 19 2016
                      UNITED STATES COURT OF APPEALS
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 15-55682

         Plaintiff -Appellee,                     D.C. No. 8:10-cv-00995-DOC

   v.
                                                  MEMORANDUM*
EDDIE LEE FRANKLIN,

             Defendant- Appellant.


                    Appeal from the United States District Court
                         for the Central District of California
                  David O. Carter, Presiding District Judge, Presiding

                         Argued and Submitted April 5, 2016
                                Pasadena, California

Before: FERNANDEZ and BEA, Circuit Judges, and SETTLE, District Judge.**




         *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
        The Honorable Benjamin H. Settle, United States District Judge for the
Western District of Washington, sitting by designation.
       Appellant Eddie Lee Franklin (“Franklin”) appeals the denial of his motion

to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The

district

court granted a certificate of appealability on the issue of whether Franklin’s trial

or


appellate counsel provided ineffective assistance under Strickland v. Washington,

466 U.S. 668 (1984). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253. We affirm.

       To establish ineffective assistance of counsel, Franklin “must show both that

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

prejudiced his defense.” Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing

Strickland, 466 U.S. at 687). When a petitioner alleges ineffectiveness of

counsel’s assistance, he or she must show not just what counsel could have done

differently, but that counsel’s representation fell below an objective standard of

reasonableness. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (citing

Strickland, 466 U.S. at 687–88). Counsel is presumed, with high deference, to

have provided effective assistance. Strickland, 466 U.S. at 689. Courts must not

simply give attorneys the benefit of the doubt, but must “affirmatively entertain the

range of possible reasons . . . counsel may have had for proceeding as they did.”
                                           2
Cullen v. Pinholster, 563 U.S. 170, 195 (2011) (internal quotation marks omitted).

“Mere criticism of a tactic or strategy” alone is not sufficient to show that

counsel’s performance was deficient. Gustave v. United States, 627 F.2d 901, 904

(9th Cir. 1980).

      In this case, Franklin fails to show that either his trial or appellate counsel’s

performance fell below an objective standard of reasonableness. While Franklin’s

counsel could have presented an argument that Franklin’s prior offenses were not

predicate offenses for purposes of the Sentencing Guideline’s career offender

enhancement, U.S.S.G. § 4B1.1, there was no Ninth Circuit authority for such a

proposition and all of the out-of-circuit authority was decided against it. In such a

legal landscape, it is not objectively deficient performance to forgo a legal

argument that Franklin’s prior offenses potentially do not qualify as predicate

offenses. Moreover, Franklin has failed to overcome the strong presumption that

his counsel made a strategic decision in light of the facts and circumstances of the

case. Therefore, Franklin is not entitled to relief under § 2255.

      AFFIRMED.




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