                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 25 2010

                                                                        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. 09-16130

               Plaintiff - Appellee,             D.C. Nos.    2:08-cv-00462-JAT
                                                              2:04-cr-01088-JAT
  v.

CALVIN FRANK MORRIS,                             MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                                                         **
                            Submitted October 19, 2010

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Federal prisoner Calvin Frank Morris appeals from the district court’s

judgment denying his motion for relief under 28 U.S.C. § 2255. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.




          *
             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).
      The district court properly denied Morris’ claim of ineffective assistance of

counsel because Morris has not established deficient performance by his trial

counsel’s decisions not to object to the government’s alleged amendment of the

indictment, or to the Pinkerton instruction. See Rupe v. Wood, 93 F.3d 1434, 1445

(9th Cir. 1996) (failure to take a futile action is not deficient performance).

      Furthermore, Morris has not established a reasonable probability that a

separate jury trial on the issue of drug quantity or a request for a minor role

adjustment under the Sentencing Guidelines would have produced a different result

given the extensive evidence against him. Strickland v. Washington, 466 U.S. 668,

694 (1984).

      AFFIRMED.




                                           2                                      09-16130
