                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 10 2011

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

UNITED STATES OF AMERICA,                        No. 10-35252

              Plaintiff - Appellee,              D.C. Nos.    2:09-cv-00148-WFN
                                                              2:04-cr-00262-WFN
  v.

KENNETH DALE GOOCH,                              MEMORANDUM*

              Defendant - Appellant.


                 Appeal from the United States District Court
                    for the Eastern District of Washington
             Wm. Fremming Nielsen, Senior District Judge, Presiding

                       Argued and Submitted March 8, 2011
                               Seattle, Washington

Before: McKEOWN, FISHER, and GOULD, Circuit Judges.

       Defendant-Appellant Kenneth Gooch appeals the district court’s denial of

his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on

the ground that his counsel provided him with ineffective assistance. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      There are two elements that a defendant must satisfy to establish a Sixth

Amendment right to counsel violation on the theory that counsel’s representation

was constitutionally ineffective: First, it is necessary to show that counsel’s

performance was deficient and, second, the defendant must show that the deficient

performance prejudiced the defense. See Earp v. Ornoski, 431 F.3d 1158, 1173

(9th Cir. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). There

is a “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689. Gooch has not

shown that his counsel’s performance was deficient.1

      Gooch contends that his counsel should have made further efforts to locate

and interview two potential witnesses, Elizabeth Troudt and Amanda Card. But

“[a] claim of failure to interview a witness . . . cannot establish ineffective

assistance when the person’s account is otherwise fairly known to defense

counsel.” Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Eggleston

v. United States, 798 F.2d 374, 376 (9th Cir. 1986)). Defense counsel knew

Troudt’s account because he reviewed the transcript of her grand jury testimony

and reports of her interviews with law enforcement. Gooch does not identify



      1
             Because we hold that counsel’s performance was not deficient, we
need not assess whether counsel’s performance prejudiced the defense.
                                            2
additional information his counsel would have obtained by interviewing Troudt,

except to claim that her testimony would have been useful to impeach a key

prosecution witness. But Troudt’s testimony would also have implicated Gooch by

connecting him to the Beretta. The strategy of not pursuing Troudt further as a

witness2 falls within the “wide latitude” accorded counsel for tactical decisions.

Strickland, 466 U.S. at 689.

      Nor does Gooch explain what relevant information would have been gained

by interviewing Card. Her testimony might have been used to impeach Troudt, but

because Troudt didn’t testify, what Card might have said would not have affected

the jury’s decision.

      AFFIRMED.




      2
            Defense counsel did hire an investigator to find Troudt, but that effort
was not successful.
                                          3
