                                                                          FILED
                            NOT FOR PUBLICATION                            APR 23 2015

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



                            FOR THE NINTH CIRCUIT


TIMOTHY R. BLOWERS,                              No. 13-16875

               Petitioner - Appellant,           D.C. No. 4:09-cv-617-AWT

v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

               Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    A. Wallace Tashima, District Judge, Presiding

                       Argued and Submitted March 30, 2015
                              San Diego, California

Before: WALLACE and SCHROEDER, Circuit Judges, and BENITEZ, District
Judge.**

      Appellant Timothy Blowers appeals from the denial of his motion to vacate,

set aside, or correct a sentence under 28 U.S.C. § 2255. We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

           *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable Roger T. Benitez, District Judge for the U.S. District Court
for the Southern District of California, sitting by designation.
      1. Blowers argues that he received ineffective assistance of counsel when

trial counsel failed to object to the admission of a letter written by the

Government’s witness. The letter contained various dates that Blowers allegedly

violated the law. Blowers argues the letter was inadmissible hearsay. The district

court declined to address whether Blowers’ trial counsel performed deficiently, but

concluded that, even if he had, his performance was not prejudicial. We agree.

      The district court was not required to address whether trial counsel’s

performance was deficient where there was no prejudice. Strickland v.

Washington, 466 U.S. 668, 697 (1984). The witness could have testified to the

contents of the letter. The letter could have been used to refresh the witness’

recollection. The letter could have been read into evidence under Federal Rule of

Evidence 803(5). Thus, the contents of the letter would have been presented to the

jury in some form or fashion. In addition, the Government called other witnesses

to testify to various dates on which Blowers committed the charged offenses. Even

if trial counsel’s failure to object to the admission of the letter was deficient, it was

not prejudicial. See Clark v. City of Los Angeles, 650 F.2d 1033, 1036 (9th Cir.

1981).

      2. Blowers argues that his trial counsel provided ineffective assistance

because he failed to prove there was no damage to the Indian Kitchen

                                            2
archaeological site. This argument is without merit. Blowers was convicted of

violating the Archaeological Resource and Protection Act, 16 U.S.C. § 470ee,

which prohibits a person from damaging archaeological resources. The district

court did not err in holding that trial counsel’s failure to present such evidence was

not prejudicial because the evidence at trial showed damage to archaeological

resources, beyond the damage done to the Indian Kitchen site.

      AFFIRMED.




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