                              NOT FOR PUBLICATION                           FILED
                       UNITED STATES COURT OF APPEALS                        FEB 11 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                          No. 14-56556

               Plaintiff - Appellee,                D.C. Nos.    3:13-cv-03176-WQH
                                                                 3:10-cr-02920-WQH-
    v.                                              1

 JUAN CARLOS FLORES-ACUNA,
                                                    MEMORANDUM*
               Defendant - Appellant.

                      Appeal from the United States District Court
                        for the Southern District of California
                      William Q. Hayes, District Judge, Presiding

                         Argued and Submitted January 7, 2016
                                 Pasadena, California

Before: WATFORD and FRIEDLAND, Circuit Judges and MOTZ,** Senior
District Judge.

         Juan Carlos Flores-Acuna, a federal prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2255 motion, as well as the court’s decision not to hold

an evidentiary hearing. In December 2010, a federal jury convicted Flores-Acuna


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
of two drug offenses. After trial, a clinical and forensic psychologist evaluated

Flores-Acuna and concluded that his low test results “would suggest that his

intellectual functioning falls within the Mentally Retarded range,” although “the

question remains as to the exact nature of his intellectual abilities, and whether or

not his functional skills [would] match those of mental retardation.” Flores-Acuna

asserts that his counsel was deficient for failing to investigate his intellectual

ability before trial, and that he was prejudiced by counsel’s failure to present

evidence of his mental deficit to the jury.

      We review the district court’s denial of a § 2255 motion de novo, and the

denial of an evidentiary hearing for abuse of discretion. Mendoza v. Carey, 449

F.3d 1065, 1068 (9th Cir. 2006). We review findings of fact made by the district

court for clear error. Id. To prevail on an ineffective assistance claim, a habeas

petitioner must show first that his attorney’s performance “fell below an objective

standard of reasonableness,” and second that he suffered prejudice as a result.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To show prejudice, a

petitioner must demonstrate a “reasonable probability” that the outcome of the

proceeding would have been different. Id. at 694. A “reasonable probability” is

a probability “sufficient to undermine confidence in the outcome” of the case.

                                              2
Evans v. Lewis, 855 F.2d 631, 636 (9th Cir. 1988) (quoting Strickland, 466 U.S. at

694). For him to succeed, “the likelihood of a different result must be substantial,

not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).

      Even assuming the performance of Flores-Acuna’s trial counsel was

deficient, there was no prejudice under Strickland. Flores-Acuna argues that

because the sole disputed element at trial was his knowledge of the drugs in the

truck he drove across the border, the lack of mental impairment evidence –

evidence which Flores-Acuna asserts supports his claim that he did not know about

the drugs – was prejudicial. This argument fails.

      Evidence of Flores-Acuna’s knowledge of the drugs was robust. The

government presented evidence that Flores-Acuna was the registered owner,

driver, and sole occupant of the truck in which the drugs were found; that a large

quantity of drugs worth between $70,000 and $84,000 was found in a secret

compartment of the truck; that he appeared nervous when questioned upon

attempting to cross the border; and that at 3:04 A.M., while waiting in line at the

port of entry, he made a fourteen-second call on a Boost cell phone – not his

personal cell phone – registered in another name.

      Moreover, beyond the strength of the government’s evidence against Flores-

                                          3
Acuna, the psychological evaluation he relies upon does not provide the refuge that

he seeks. First, although the report did conclude that “[g]iven his intellectual

resources, it is unlikely that [Flores-Acuna] would have been able to devise any

sort of complex plan to traffic drugs or even distribute them,” the alleged plan here

was not complex: Flores-Acuna was merely driving hidden drugs in a truck across

the border. Nothing in the report casts doubt on Flores-Acuna’s ability to perform

that straightforward task. Furthermore, although evidence of what the report

called Flores-Acuna’s “limited intellectual resources,” could explain why he “had

trouble understanding questions, remembering dates, time, names, and the

sequence of events” and “why certain types of questions proved more difficult for

him to answer,” it would do little to blunt the strong physical and circumstantial

evidence of Flores-Acuna’s knowledge.

         For these reasons, we conclude that it is not reasonably probable that, had

the jury been presented with evidence from the psychological report, the outcome

of the trial would have been different. Accordingly, even assuming trial counsel’s

performance was deficient, Flores-Acuna cannot establish the requisite prejudice

under Strickland.

      Finally, Flores-Acuna contends that the district court abused its discretion by

                                          4
denying an evidentiary hearing on his claim. For the reasons discussed above, the

district court’s conclusion that Flores-Acuna did not state a claim for habeas relief

and thus was not entitled to an evidentiary hearing was not an abuse of discretion.

United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).

      The judgment of the district court is AFFIRMED.




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