United States v. Pius Ailemen, 473 F. App'x 754

Ailemen appeals the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2255.
He was convicted by a jury of conspiracy to distribute heroin, engaging in a continuing criminal enterprise, and one count of distribution of heroin.
Pro se, Ailemen argues ineffective assistance of counsel based on: (a) denial of the right to testify, (b) promised but unbacked evidence in opening, and (c) hostility between defense counsel and the court prejudicing the case.
The Ninth Circuit reviews de novo a district court’s § 2255 denial and reviews factual findings for clear error (citing Aguirre-Ganceda).
The government presented substantial evidence: four couriers’ testimony, an undercover agent, and an intermediary; wiretap evidence suppression had occurred previously but was not necessary for conviction.
On direct appeal, the panel held the overwhelming evidence against Ailemen was fatal to his prejudice claims, and the § 2255 claims were rejected.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance of counsel standard	Ailemen asserts deficient performance prejudiced him.	Ailemen cannot show prejudice; evidence was overwhelming.	No reversible prejudice; Strickland not satisfied.
Right to testify denied by counsel	Counsel’s disorganization kept Ailemen from testifying.	Record shows fear of impeachment, not denial by counsel, and prejudice shown not shown.	Not shown to have prejudiced defense; affirmed.
Promised evidence in opening statement	Opening statements promised evidence not later supported at trial.	Much of the promised evidence was presented; remaining would not overcome overwhelming evidence.	No prejudice; affirmed.
Hostility among defense counsel and court	Hostility prejudiced Ailemen.	Direct appeal rejected this claim given overwhelming evidence.	Denied; no prejudice found.
Certificate of appealability for wiretap grand jury issues	Uncertified issues warrant review; ineffective assistance and grand jury challenges.	Lack of prejudice and harmless error findings defeat COA.	COA denied for both issues; panel already found harmless regarding wiretap testimony.

Strickland v. Washington, 466 U.S. 668 (1984) (establishes performance and prejudice prongs for ineffective assistance)
Snow-Erlin v. United States, 470 F.3d 804 (9th Cir. 2006) (prejudice requirement in habeas review of trial counsel)
Slack v. McDaniel, 529 U.S. 473 (2000) (certificate of appealability standard; substantial showing required)
United States v. Aguirre-Ganceda, 592 F.3d 1043 (9th Cir. 2010) (controls de novo review of § 2255 denials and factual findings)
United States v. Ailemen, 43 F. App’x 77 (9th Cir. 2002) (direct appeal reliance on overwhelming evidence defeating prejudice)