United States of America v. John McTiernan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN MCTIERNAN,
Defendant - Appellant.
No. 13-56526
D.C. Nos. 2:12-cv-04501-DSF
2:06-cr-00259-DSF-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted January 16, 2014 **
San Francisco, California
Before: O’SCANNLAIN, GRABER, and NGUYEN, Circuit Judges.
John McTiernan appeals the district court’s denial of relief under 28 U.S.C.
§ 2255. McTiernan argues that his conviction for perjury under 18 U.S.C. §
1623(c) was legally deficient under United States v. Jaramillo, 69 F.3d 388,
FILED
JAN 22 2014
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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390–92 (9th Cir. 1995). Alternatively, McTiernan maintains his prior counsel was
ineffective for failing to raise Jaramillo. Reviewing the district court’s denial of
relief de novo, White v. Martel, 601 F.3d 882, 883 (9th Cir. 2010) (per curiam), we
affirm.
McTiernan presents his arguments based on Jaramillo as though in direct
proceedings. But his challenge is collateral, and under his plea agreement,
McTiernan waived “any right to bring a post-conviction collateral attack on the
convictions or sentence, except a post-conviction collateral attack based on a claim
of ineffective assistance of counsel . . . .” McTiernan’s waiver was unambiguously
stated and knowingly and voluntarily made, and so is valid and enforceable.
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Even without the
waiver, all of McTiernan’s claims, except for ineffective assistance of counsel, see
Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005), are procedurally
defaulted because he failed to demonstrate the necessary “cause and actual
prejudice,” Bousley v. United States, 523 U.S. 614, 622 (1998), or “actual
innocence” of both the offenses of conviction and the charges that the government
forewent in plea negotiations, id. at 624, to excuse default.
To prevail on his ineffective assistance of counsel theory, McTiernan must
show that “(1) counsel’s representation fell below the range of competence
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demanded of attorneys in criminal cases, and (2) ‘there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.’” Washington, 422 F.3d at 873 (quoting Hill v. Lockhart,
474 U.S. 52, 58–59 (1985)).
McTiernan has made no attempt to show why Jaramillo was never raised by
counsel. Although he complains the district court speculated that strategic
considerations, rather than ignorance or inadvertence, might explain the omission,
ultimately it was McTiernan’s obligation to rebut the presumption of counsel’s
competence. Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008). This he did
not do. There is no evidentiary support for the allegation that counsel’s
performance was deficient.
AFFIRMED.
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