United States of America v. Calvin Frank Morris

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CALVIN FRANK MORRIS,
Defendant - Appellant.
No. 09-16130
D.C. Nos. 2:08-cv-00462-JAT
2:04-cr-01088-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Federal prisoner Calvin Frank Morris appeals from the district court’s
judgment denying his motion for relief under 28 U.S.C. § 2255. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
FILED
OCT 25 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-16130 2
The district court properly denied Morris’ claim of ineffective assistance of
counsel because Morris has not established deficient performance by his trial
counsel’s decisions not to object to the government’s alleged amendment of the
indictment, or to the Pinkerton instruction. See Rupe v. Wood, 93 F.3d 1434, 1445
(9th Cir. 1996) (failure to take a futile action is not deficient performance).
Furthermore, Morris has not established a reasonable probability that a
separate jury trial on the issue of drug quantity or a request for a minor role
adjustment under the Sentencing Guidelines would have produced a different result
given the extensive evidence against him. Strickland v. Washington, 466 U.S. 668,
694 (1984).
AFFIRMED.

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