United States v. Edward Ellington ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-35544
Plaintiff-Appellee, D.C. Nos. 6:19-cv-00038-BMM
6:17-cr-00010-BMM-1
v.
EDWARD PAUL ELLINGTON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted July 6, 2022**
Portland, Oregon
Before: WATFORD, R. NELSON, and LEE, Circuit Judges.
Edward Paul Ellington appeals from the district court’s order denying his
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. We
affirm.
1. The district court correctly concluded that Ellington did not establish
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 3
ineffective assistance of his sentencing counsel in failing to object to the
calculation of the drug weight or the sentencing enhancements applied in this case.
In order to prevail on an ineffective assistance of counsel claim, Ellington must
show that (1) counsel’s performance fell outside the wide range of reasonable
professional assistance, and (2) there is a reasonable probability that, but for
counsel’s deficient performance, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).
As the district court explained, the presentence report set out the factual
basis for each of the sentencing enhancements, and Ellington’s § 2255 motion
failed to allege any specific facts or law that undermined any enhancement. With
respect to drug weight, Ellington was held responsible for the quantity of drugs
that he himself admitted to obtaining and distributing and those found in his
vehicle during a law enforcement search. In the absence of any factual allegations
demonstrating that counsel had a legitimate objection to make, Ellington has failed
to show that sentencing counsel’s performance was unreasonable. See id. at 687–
88. And because he has failed to allege any facts showing a reasonable probability
that a challenge to the enhancements would have been successful, Ellington
likewise cannot demonstrate the necessary prejudice. Id. at 694.
2. The district court correctly concluded that Ellington failed to establish
ineffective assistance based on counsel’s lack of investigation into possible
Page 3 of 3
misconduct by Sheriff Roger Thompson in a matter involving one of Ellington’s
known suppliers. Ellington voluntarily spoke with law enforcement and admitted
to trafficking methamphetamine. He was subsequently caught with
methamphetamine in his vehicle. It is undisputed that Sheriff Thompson was not
involved in the search of Ellington’s vehicle or his arrest. Moreover, Ellington was
indicted, convicted, and sentenced for conduct that occurred prior to, and in a
different county than, later misconduct by Sheriff Thompson with respect to
another suspect. Thus, even if the failure to investigate was unreasonable,
Ellington has failed to demonstrate a reasonable probability that the lack of
investigation into Sheriff Thompson resulted in prejudice. Id.
3. Ellington additionally claims that his prior counsel, Todd Whipple, was
ineffective due to an alleged conflict of interest. Because Ellington failed to raise
this claim below, it is not properly before us. See United States v. Beierle, 77 F.3d
1199, 1201 (9th Cir. 1996).
4. The district court did not abuse its discretion in denying Ellington’s
motion without a hearing because “the motion and the files and records of the case
conclusively show that [Ellington] is entitled to no relief.” 28 U.S.C. § 2255(b);
see United States v. McMullen, 98 F.3d 1155, 1158–59 (9th Cir. 1996).
AFFIRMED.