United States of America v. Brock Purviance

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BROCK PURVIANCE,
Defendant - Appellant.
No. 09-36056
D.C. Nos. 3:08-cv-00007-JWS
3:06-cr-00040-JWS
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted July 27, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Brock Purviance appeals the district court’s denial of his motion to vacate
his sentence under 28 U.S.C. § 2255. As the facts are known to the parties, we
repeat them only as necessary to explain our decision.
FILED
OCT 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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I
The only certified issue in this appeal is Purviance’s claim that he received
ineffective assistance of counsel during criminal proceedings. We reject this
claim. His argument that counsel failed properly to consult with him regarding an
appeal fails because Purviance and his attorney discussed the possibility of an
appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In any event, there
was no evidence in the record that Purviance actually instructed counsel to appeal.
Likewise, his claim that he was prejudiced by his lawyer’s failure to present the
strongest available evidence to rebut an enhancement of his sentence under
U.S.S.G. § 2A3.2(b)(2)(B) is flawed because Purviance’s lawyer adequately
researched the caselaw surrounding section 2A3.2(b)(2)(B) and reasonably
declined to call witnesses who would offer unpredictable testimony of uncertain
relevance and weight. Purviance cannot show that he was prejudiced when his
lawyer did not seek to have him admitted to a drug-treatment program because it is
speculative that he would have been selected. As for the FBI 302s, the reports of
interviews with Purviance’s victim and her friend taken almost two years after the
crime would have been inadequate to rebut the presumption of undue influence in
light of the strong, contemporaneous evidence that Purviance exerted such
influence over his victim. Finally, Purviance’s attorney did not err by failing to

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challenge the conditions of Purviance’s supervised release; instead, she made a
reasonable tactical decision to trade harsher supervised-release conditions for a
shorter prison sentence. See Strickland v. Washington, 466 U.S. 668, 689 (1984).
II
Purviance also raises several uncertified issues in his opening brief. See 9th
Cir. R. 22-1(e). We decline to expand the certificate of appealability to include
these issues.
III
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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