#### James POSTLETHWAITE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 16-35487

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2017 Seattle, Washington

Filed December 14, 2017

Andrew David Kennedy, Jennifer Elizabeth Wellman, Assistant Federal Public Defender, FPDWA—Federal Public Defender’s Office, Western District of Washington, Seattle, WA, for Petitioner-Appellant

Helen J. Brunner, Esquire, Assistant U.S. Attorney, Vincent Thomas Lombardi, II, Esquire, Assistant U.S. Attorney, Teal Luthy Miller, DOJ-Office of the U.S. Attorney, Seattle, WA, for Respondent-Ap-pellee

Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.

MEMORANDUM *

James Postlethwaite appeals the denial of a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel in connection with his earlier conviction for conspiracy to distribute marijuana in violation of 21 U.S.C § 841(b)(1)(A). The facts are known to the parties and will not be repeated here unless necessary.

I

Postlethwaite argues that he received ineffective assistance of counsel, in violation of the Sixth Amendment, in connection with a motion to suppress certain statements made to investigators after being arrested. *See Strickland v. Washington,*466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court found that while counsel’s performance was deficient, Postlethwaite was not prejudiced by any deficient performance. Post-lethwaite appeals that ruling,

A

We review a district court’s denial of a 28 U.S.C. § 2255 motion based on ineffective assistance of counsel de novo. *United*
      *409
      *States v. Rodrigues,*347 F.3d 818, 823 (9th Cir. 2003). Ineffective assistance claims are evaluated under the two-prong test announced in *Strickland,*466 U.S. at 687, 104 S.Ct. 2052. To succeed on a *Strickland*claim, a defendant must prove that (1) counsel’s performance was deficient, and (2) the defendant was prejudiced by counsel’s deficient performance. *Vega v. Ryan,*757 F.3d 960, 965 (9th Cir. 2014).

B

Even had Postlethwaite’s counsel performed deficiently—which we assume without deciding—“[t]he likelihood of a different result must be substantial, not just conceivable.” *Harrington v. Richter,*562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Postlethwaite does not meet this burden. *See id.*at 104, 131 S.Ct. 770. The government introduced video surveillance that identified the delivery truck as a red Volvo towing a white Hyundai trailer. At trial, the government offered the testimony of three individuals who identified Postleth-waite as the driver. The witnesses also testified that Postlethwaite operated the secret compartment in the truck, where the drugs were stored.

Furthermore, the government put forth evidence showing that, on multiple occasions, Postlethwaite crossed the border driving the red Volvo shortly before the drugs were delivered, by this same truck and trailer, to the distribution warehouse in Kent, Washington.

The crux of the prosecution’s case was proven by the three witnesses and corroborated by the border-crossing records. The evidence adduced at trial, even excluding Postlethwaite’s statements, renders no “reasonable probability that the successful [suppression] motion would have affected the outcome.” *Van Tran v. Lindsey,*212 F.3d 1143, 1156 (9th Cir. 2000).

II

The judgment of the district court is AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.