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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`FILED
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`OCT 18 2019
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`
`
`
`No. 18-16897
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`D.C. Nos. 3:18-cv-00401-VC
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`
`
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`3:15-cr-00540-VC-1
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`
`
`MEMORANDUM*
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`
`
`
`
`
`
` Plaintiff-Appellee,
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`UNITED STATES OF AMERICA,
`
`
`
` v.
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`DUANE CHARLES ACKERMAN,
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`
`
`
`
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`
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` Defendant-Appellant.
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`
`
`Before:
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Vince Chhabria, District Judge, Presiding
`
`Submitted October 15, 2019**
`
`FARRIS, LEAVY, and RAWLINSON, Circuit Judges.
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`Federal prisoner Duane Charles Ackerman appeals pro se from the district
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`court’s judgment denying his 28 U.S.C. § 2255 motion to vacate his sentence. We
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`have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v.
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`Reves, 774 F.3d 562, 564 (9th Cir. 2014), we affirm.
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
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`except as provided by Ninth Circuit Rule 36-3.
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`** The panel unanimously concludes this case is suitable for decision
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`without oral argument. See Fed. R. App. P. 34(a)(2).
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`
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`
`
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`
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`Ackerman contends that his initial, retained counsel provided ineffective
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`assistance leading up to Ackerman’s change of plea hearing. The district court did
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`not err by denying Ackerman’s claim. Contrary to Ackerman’s contentions,
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`Ackerman did not enter into his plea agreement while he was represented by his
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`retained counsel. Instead, Ackerman was appointed and consulted with new
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`counsel before entering the plea agreement. Accordingly, Ackerman cannot
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`demonstrate he suffered any prejudice from his retained counsel’s alleged deficient
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`performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
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`Ackerman next contends that his appointed counsel also rendered ineffective
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`assistance by failing to advise him about a possible defense strategy to the 18
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`U.S.C. § 2251 counts. Because the defense strategy that Ackerman asserts would
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`not have succeeded at trial, see United States v. Banks, 556 F.3d 967, 979-80 (9th
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`Cir. 2009), Ackerman cannot demonstrate that he suffered any prejudice, see Hill
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`v. Lockhart, 474 U.S. 52, 59 (1985).
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`We decline to consider Ackerman’s remaining ineffective assistance of
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`counsel claims that were not raised before the district court or in his opening brief.
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`See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n appellate court
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`will not consider issues not properly raised before the district court. Furthermore,
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`on appeal, arguments not raised by a party in its opening brief are deemed
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`waived.”).
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`We treat Ackerman’s additional claims as a motion to expand the certificate
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`
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`2
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` 18-16897
`
`
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`of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e);
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`Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).
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`
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`AFFIRMED.
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`
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`3
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` 18-16897
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`
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