United States v. Zorio
United States v. Zorio
Opinion of the Court
MEMORANDUM
Federal inmate Maximo Zorio appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his 1997 cocaine conspiracy conviction. Zorio argues the district court erred in denying his motion without an evidentiary hearing on his claim that counsel was ineffective for failing to challenge the government’s grant of immunity to government witness Villarino. Zorio seeks a reversal for an evidentiary hearing. We have jurisdiction pursuant to 28 U.S.C. § 2253(c) and review the district court’s decision not to hold an evidentiary hearing for an abuse of discretion. United States v. Chacon-Palomares, 208 F.3d 1157, 1158-59 (9th Cir. 2000). We affirm.
The district court cannot deny a § 2255 motion without an evidentiary hearing when the factual allegations, if true, would have entitled the defendant to relief. United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994); Baumann v. United States, 692 F.2d 565, 570-71 (9th Cir. 1982). Zorio’s claim arises out of his counsel’s discovery on cross-examination that government witness Villarino may have had an oral immunity agreement with an Assistant United States Attorney in a different case in Colorado. Zorio alleged in his
The record conclusively shows that the outcome of the trial and direct appeal would not have been different if counsel had discovered the Colorado immunity agreement with Villarino prior to trial, cross-examined Villarino more thoroughly, or raised the ineffective assistance of counsel claim on direct appeal. Villarino’s testimony about his numerous illegal activities, including his lies to the prosecuting attorney, and his testimony that he had immunity for “anything” he said during testimony were explored fully before the jury. Additional questioning would have added little or nothing. Moreover, the timing and nature of the disclosure did not prejudice Zorio. By obtaining the revelation of the immunity agreement for the first time on cross-examination, Zorio’s counsel impeached Villarino’s credibility more dramatically than if the government had been able to draw the sting. To reiterate, all of this is of record. Zorio has not come forward with factual allegations outside the record that, if true, would warrant relief. Accordingly, the district court did not err in denying the § 2255 motion without conducting an evidentiary hearing. AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
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