                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 18 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-16897

                Plaintiff-Appellee,             D.C. Nos.    3:18-cv-00401-VC
                                                             3:15-cr-00540-VC-1
 v.

DUANE CHARLES ACKERMAN,                         MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Vince Chhabria, District Judge, Presiding

                           Submitted October 15, 2019**

Before:      FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

      Federal prisoner Duane Charles Ackerman appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2255 motion to vacate his sentence. We

have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v.

Reves, 774 F.3d 562, 564 (9th Cir. 2014), we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Ackerman contends that his initial, retained counsel provided ineffective

assistance leading up to Ackerman’s change of plea hearing. The district court did

not err by denying Ackerman’s claim. Contrary to Ackerman’s contentions,

Ackerman did not enter into his plea agreement while he was represented by his

retained counsel. Instead, Ackerman was appointed and consulted with new

counsel before entering the plea agreement. Accordingly, Ackerman cannot

demonstrate he suffered any prejudice from his retained counsel’s alleged deficient

performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

      Ackerman next contends that his appointed counsel also rendered ineffective

assistance by failing to advise him about a possible defense strategy to the 18

U.S.C. § 2251 counts. Because the defense strategy that Ackerman asserts would

not have succeeded at trial, see United States v. Banks, 556 F.3d 967, 979-80 (9th

Cir. 2009), Ackerman cannot demonstrate that he suffered any prejudice, see Hill

v. Lockhart, 474 U.S. 52, 59 (1985).

      We decline to consider Ackerman’s remaining ineffective assistance of

counsel claims that were not raised before the district court or in his opening brief.

See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n appellate court

will not consider issues not properly raised before the district court. Furthermore,

on appeal, arguments not raised by a party in its opening brief are deemed

waived.”).

      We treat Ackerman’s additional claims as a motion to expand the certificate


                                          2                                    18-16897
of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e);

Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

      AFFIRMED.




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