Moore

MEMORANDUM **

Randall E. Moore, William B. Scott, and Carl R. Hanley appeal the district court’s denial of their motions, pursuant to 28 U.S.C. § 2255 , to vacate, set aside or correct their sentences. Appellants argue that their counsel on direct appeal provided ineffective assistance by failing to argue, based on a recent Ninth Circuit opinion, that the sentencing court should have applied a clear and convincing evidence standard in assessing their sentencing enhancements, not a preponderance of the evidence standard. Appellant Scott additionally argues that the district court in his habeas proceeding erred by not holding an evidentiary hearing or otherwise expanding the record to determine if his trial counsel was ineffective because he slept during the trial. We review the denial of appellants’ § 2255 motion de novo. Doganiere v. United States, 914 F.2d 165, 167 (9th Cir.1990).

I

To prevail on a claim of ineffective assistance of counsel, appellants must show (1) that their counsel’s performance was deficient, and (2) that this deficient performance prejudiced their defense. Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Even if we…

concurring in part and dissenting in part.

Moore and his co-defendants Hanley and Scott were the principal owners and officers of a telemarketing company. All three, along with a fourth co-defendant Fry, were indicted for carrying out a fraudulent telemarketing scheme. Each defendant was represented by separate counsel. After a five-week trial, a jury returned guilty verdicts against all defendants on all counts. Hanley, Moore, and Scott were sentenced to 120 months. Fry was sentenced to 46 months. All appealed their convictions and sentences, which were affirmed by this court. United States v. Hanley, 190 F.3d 1017, 1034 (9th Cir.1999).

I concur in the holding that the district court did not err in denying Scott’s § 2255 motion regarding the ineffective assistance of counsel claims pertaining to sentencing. I dissent from the holding that the district court abused its discretion in denying an evidentiary hearing on Scott’s claim that his attorney, Mr. Wommer, slept through portions of the trial and thereby denied Scott effective assistance of counsel as guaranteed by the Sixth Amendment.

Scott filed two affidavits in support of his request for a hearing. The affidavits are…