NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MASON JAMES HENRY, Petitioner - Appellant,
v. UNITED STATES OF AMERICA, Respondent - Appellee. No. 11-17363 D.C. Nos. 2:10-cv-02776-JAT

2:08-cr-01377-JAT-2
MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Jam es A. Teilborg, Senior District Judge, Presiding Argued & Subm itted October 8, 2013 San Francisco, California Before: N.R. SMITH and NGUYEN, Circuit Judges, and QUIST, Senior District Judge. * * We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 to review the denial of Mason Jam es Henry’s 28 U.S.C. § 2255 habeas petition. Reviewing the district 

# FILED
OCT 17 2013 M OLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

* * The Honorable Gordon J. Quist, Senior District Judge for the U.S. District Court for the Western District of Michigan, sitting by designation.court’s denial of the habeas petition de novo, United States v. Manzo , 675 F.3d

1204, 1209 (9th Cir. 2012), we affirm
. 1. Henry’s plea-agreem ent counsel did not have a duty to investigate Henry’s m ental health, because there was no evidence to suggest Henry was im paired. See Doe v. Woodford , 508 F.3d 563, 569 (9th Cir. 2007). Counsel’s disclosure to the court that Henry understood the proceedings even though he
som etim es took a little longer to process things was insufficient to trigger the duty to investigate Henry’s m ental im pairm ent. See id. Even if counsel were ineffective by not investigating Henry’s m ental health, the plea agreem ent would still be valid. Henry has offered no evidence that an investigation into his m ental health would have changed the outcom e of the plea agreem ent. See Hill v. Lockhart , 474 U.S. 52, 59 (1985). Instead, Henry speculates that there m ight be som ething in his m edical, school, and fam ily records that indicates he is m entally im paired. “Such speculation is plainly insufficient to establish prejudice.” Gonzalez v. Knowles , 515 F.3d 1006, 1016 (9th Cir. 2008). 2. Assum ing failure on the part of counsel to inform Henry of the m aximum possible sentence he could receive, Henry was not prejudiced. See Gonzalez v. United States , 33 F.3d 1047, 1051-52 (9th Cir. 1994). At the plea hearing, Henry told the court he was satisfied with his attorney’s perform ance. The court told
-2-Henry that he could be im prisoned for a term of up to 25 years, which was the

m aximumsentence Henry could have received. Henry told the court that he understood the sentencing term s. 3. We decline to extend the Certificate of Appealability (COA) to include Henry’s claim that 18 U.S.C. § 1153 is unconstitutionally vague. See 9th Cir. R. 22-1(e). “[M] erely because the term‘Indian’ has been judicially defined on a caseto-case basis does not render § 1153 im perm issibly vague.” United States v. Broncheau , 597 F.2d 1260, 1264 (9th Cir. 1979). 4. We decline to extend the COA to include Henry’s claim s that the plea agreem ent was insufficient to support his guilty plea. In the plea agreem ent context, “[a] lleging that [Henry] was an Indian was sufficient for purposes of federal jurisdiction under § 1153. Further refinem ent was not required.” Broncheau , 597 F.2d at 1263. The elem ents of the crim e (with which Henry was charged) were found in the plea agreem ent (which Henry signed) and reviewed by the court with Henry at the plea hearing. Moreover, the factual allegations contained in the plea agreem e nt and reviewed with Henry by the court at t he plea hearing were sufficient to properly inform Henry of the nature and elem ents of the crim e. Thus, the constitutional requirem ents of a plea agreem e nt were m et. See Bradshaw v. Stumpf

, 545 U.S. 175, 183 (2005).

-3-The judgm ent of the district court is AFFIRMED
.

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