Opinion
Argued and Submitted November 5, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant convicted of drug offenses filed motion to vacate. The United States District Court for the District of Oregon, Michael R. Hogan, Chief Judge, denied motion. Defendant appealed. The Court of Appeals held that: (1) defendant could not pursue claim based on Apprendi rule via motion to vacate; (2) defense counsel was not required to introduce expert on Thai culture to provide adequate representation; and (3) failure to subpoena confidential informant did not support ineffective assistance of counsel claim.
Affirmed.
Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, Chief District Judge, Presiding.
Before HUG, T.G. NELSON, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Thanad Paktipatt appeals the district court's order denying his habeas corpus petition filed under 28 U.S.C. § 2255. Specifically, Paktipatt challenges the district court's holding that it could not retroactively apply the new rule established in Apprendi v. New Jersey to cases on initial
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Page 445.
collateral review and that Paktipatt did not receive ineffective assistance of counsel at trial. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2255. We affirm the district court's order.
The decision to deny a § 2255 petition is reviewed de novo. Paktipatt asserts that his sentence for drug violations violated Apprendi because the judge set the sentence after determining the drug quantities himself. However, our recent decision in United States v. Sanchez-Cervantes forecloses Paktipatt's Apprendi claim. In Sanchez-Cervantes, we held that Apprendi does not apply retroactively to cases on initial collateral review. Therefore, Paktipatt is barred from pursuing an Apprendi claim in his § 2255 petition.
United States v. Chacon-Palomares, 208 F.3d 1157, 1158 (9th Cir.2000).
United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002).
At 671.
Paktipatt also asserts that his counsel rendered ineffective assistance by not calling an expert on Thai culture as a witness and not subpoenaing a confidential informant to be a witness. In assessing claims of ineffective assistance of counsel, this circuit follows the two-prong test of Strickland v. Washington: a defendant must show deficient performance by counsel that resulted in prejudice. The record establishes that Paktipatt can show neither.
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Id. at 687, 104 S.Ct. 2052.
Paktipatt's attorney's failure to introduce an expert on Thai culture did not render his performance deficient because there were numerous other witnesses, called by both the Government and the defendant himself, who provided information on Thai culture and on Paktipatt in particular. These witnesses were sufficient to provide context for Paktipatt's relationships with the other defendants and for his actions. There was no need to call an additional witness to explain how Thai culture influenced Paktipatt's actions. It is also difficult to see how such a witness would have altered the result of the proceeding.
Paktipatt also claims that his counsel should have subpoenaed a confidential informant whose statements were introduced at trial through a videotape. Because the informant was not a witness, Paktipatt could not cross-examine him or discredit him. This claim fails the second prong of the Strickland test because even if the informant had been cross-examined and discredited, the verdict would not have been affected. The defendant's own statements captured on the video provided overwhelming evidence of his guilt. Because Paktipatt's ineffective assistance of counsel claim and his Apprendi claim both fail, we affirm the district court's order.
AFFIRMED.