UNITED STATES of America, Plaintiff-Appellee, v. Calvin Frank MORRIS, Defendant-Appellant, 400 F. App'x 293

MEMORANDUM Federal prisoner Calvin Frank Morris appeals from the district court’s judgment denying his motion for relief under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. The district court properly denied Morris’ claim of ineffective assistance of counsel because Morris has not established deficient performance by his trial counsel’s decisions not to object to the government’s alleged amendment of the indictment, or to the Pinkerton instruction. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996) (failure to take a futile action is not deficient performance).

Furthermore, Morris has not established a reasonable probability that a separate jury trial on the issue of drug quantity or a request for a minor role adjustment under the Sentencing Guidelines would have produced a different result given the extensive evidence against him. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.