United States v. Elven Swisher

MEMORANDUM

Defendant Elven Joe Swisher appeals the district court’s denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 and moves this court to expand the certificate of appeala-bility to include claims of ineffective assistance of counsel and the district court’s denial of Swisher’s motions for discovery and a hearing. We have jurisdiction under 28 U.S.C. § 2253 .

We deny Swisher’s motion to expand the certificate of appealability to include Swisher’s claims of ineffective assistance of counsel because Swisher has failed to make “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003).

Swisher’s attorneys were not deficient in obtaining relevant documents, because they obtained all of Swisher’s military and medical files, and Swisher’s claim that further efforts by his attorneys would have turned up evidence corroborating his account is wholly speculative. See Stenson v. Lambert, 504 F.3d 873, 889 (9th Cir.2007). For the same reason, he is not entitled to discovery under Rule 6 of the Federal Rules Governing § 2255…