NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JUSTIN LYLE IZATT,

Petitioner - Appellant

v. UNITED STATES OF AMERICA

Respondent - Appellee No. 17-35130 D.C. Nos. CV 13-00431-S-EJL CR 10-00112-S-EJL
MEMORANDUM *

Appeal fromthe United States District Court

for the District of Idaho Edward J. Lodge, United States District Judge, Presiding

Argued and Subm itted May 9, 2018 Seattle, Washington Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM, Chief District Judge. * * Petitioner - Appellant Justin Izatt appeals the District Court’s denial of his 28 U.S.C. § 2255 petition w ithout an evidentiary h ear ing. Izatt argues that his trial counsel provided ineffective assistance by (1) w aiving Izatt’s sp eedy trial rights 

# FILED
MAY 29 2018 MOLLY 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 John R. Tunheim , Chief United States District Judge for the District of Minnesota, sitting by designation.without his consent; (2) failing to investigate, comm unicate with Izatt, and prepare for trial; (3) m aking and breaking a prom ise to the jury that Izatt would testify; (4) failing to request a continuance before calling defen se witness M ariah Pace; (5) failing to fully develop defense testim ony; and (6) committing various errors at the sentencing p h as e. F o r the reasons that follow, we affirm the denial of Izatt’s habeas petition without an evidentiary hearing. We review the denial of a § 2255 petition de novo, United States v. Reves , 774 F.3d 562, 564 (9th Cir. 2014), and the denial of an e videntiary hearing on the petition f o r an ab u s e of discretion, United States v. R odrigues , 347 F.3d 818, 823 (9th Cir. 2003). An evidentiary hearing is warranted if the petitioner m akes “specific factual allegations that, if true, state a claim on which relief could be granted.” United States

v. Withers , 638 F.3d 1055, 1062 (9th Cir. 2011) (quoting United States v. Schaflander , 743 F .2d 714, 717 (9th C ir. 1984)). A claim of ineffective assistance of counsel requires a petitioner to show both that counsel’s perform ance was deficient and that the deficient perform ance prejudiced the petitioner. Vega v. R yan , 757 F.3d 960, 965 (9th C ir. 2014) (per curiam) (citing Strickland v. Washington , 466 U.S. 668, 687-88 (1984)).

2I.

With regard to counsel’s requ es t fo r a continuance, Izatt fails to allege prejudice. If I zatt ’ s counsel had not agreed to continuances, Izatt w ould have proceeded to trial on tim e, and there would have been no basis for a m otion to dism iss the charges. As such, Izatt h as not alleged facts that show that, “but for counsel’s unprofessional errors, the result of the p roceeding would have been different.” Strickland, 466 U.S. at 694. II. With regard to c ounsel’s failure to investigate, co mmunicate with Izatt, and prepare for trial, Izatt has not alleged specific facts that show deficient perform ance
or prejudice. He alleges no specific e rrors that stemm ed from c ounsel’s failure to spend tim e w ith him or failure to comm unicate with him

. Counsel’s decisions

r eg arding investigation and interviewing of witnesses were trial strategy decisions, and “strategic choices m ade after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id

. at 690. Moreover, the additional witnesses’ testim ony would have been cumulative; thus, Izatt has not shown that he
was prejudiced. See Wong v . Belmontes , 558 U.S. 15, 22-23 (2009); Bible v. Ryan , 571 F.3d 860, 871 (9th Cir. 2009).

3III.

With regard to counsel’s broken prom ise to the jury that I zatt wo uld testify, Izatt h as n ot alleged facts that show deficient perform ance or prejudice. Counsel reasonably changed strategies after Pace testified that the m e tham phetam ine was hers, and Izatt has not alleged facts that show that the result of his proceeding would have been different had he testified. Indeed, it is likely that Izatt’s testim ony would have been m ore prejudicial than hi s failure to take the stand. IV. With regard to counsel’s failure to request a continuance before calling Pace, Izatt has not alleged facts that show prejudice. He alleges no facts that counsel could have discovered during the continuance that wo u l d have rehabilitated Pace. Thus, there is no reason to think that the result of the proceeding w ould have been different had a continuance been sought. V. With regard to counsel’s failure to develop Pace’ s t es t i mony, Izatt has not alleged facts th at show deficient perform ance because Attorney Nelson was not responsible for e xam ining Pace. With regard to counsel’s failure to develop Brandon Harvey’s testim ony, Izatt has not all eg ed f acts that show prejudice because the referenced testim ony was elicited by the United States and did not help Izatt’s case.
4VI.

W ith r egard to counsel’s perform ance at the sentencing phase, Izatt has not alleged prejudice. Izatt faced a m andatory minim um sentence of life im

prisonm ent; thus, even im

proved perform ance by counsel w ould not have changed the outcom e at sentencing. Because Izatt failed to m ake specific factual allegations that, if true, would constitute ineffective assistance of counsel, the District C ourt did not err in denying his § 2255 petition and did not abuse its discretion in denying an evidentiary hearing. AFFIRMED.

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