                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 16 2012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. 11-17471

              Plaintiff - Appellee,              D.C. Nos.    3:08-cv-00203-LRH-
                                                 VPC
  v.                                                          3:05-cr-00241-LRH-
                                                 VPC
JAMES BRETT ZIMMERMAN,

              Defendant - Appellant.             MEMORANDUM *



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                          Submitted November 9, 2012 **
                            San Francisco, California

Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.

       James Brett Zimmerman appeals the district court’s denial of his petition for

habeas corpus. We review the district court’s denial of a 28 U.S.C. § 2255 motion




        *
             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).
de novo, United States v. Gamba, 541 F.3d 895, 898 (9th Cir. 2008), and now

affirm.

      Zimmerman, who was previously convicted of felony robbery and burglary,

pleaded guilty to one count of bank robbery and was sentenced to a prison term.

During the plea negotiations, the government promised not to pursue a federal

three strikes charge in exchange for Zimmerman’s guilty plea. See 18 U.S.C. §

3559(c)(1)(A) (defendants convicted of a serious violent felony who have

previously been convicted of at least two additional serious violent felonies are

subject to life imprisonment). Zimmerman now claims that the government’s

promise was illusory because he did not use or threaten to use a firearm or

dangerous weapon during his robberies, and therefore qualifies for a statutory

exception to the three strikes rule. See id. § 3559(c)(3)(A).

      Zimmerman is mistaken. Because he had more than two prior serious

violent felony convictions, the government could have charged him under the three

strikes statute. See id. § 3559(c)(1)(A). Zimmerman would then have had the

burden of proving that he qualified for the exception. The existence of the

exception makes no difference to the government’s charging decision. See United

States v. Kaluna, 192 F.3d 1188, 1196 (9th Cir. 1999). The government’s promise

not to pursue a three-strikes charge against Zimmerman was not illusory.


                                          2
      Zimmerman claims ineffective assistance of counsel based on his attorney’s

failure to investigate his criminal history. Primarily because the outcome of a three

strikes proceeding was not foreseeable at the time of the plea negotiation,

Zimmerman fails to show prejudice resulting from the allegedly deficient

performance of his attorney. See Strickland v. Washington, 466 U.S. 668, 688

(1984). Because Zimmerman does not show prejudice, he is not entitled to relief.

      The district court is AFFIRMED.




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