Opinion
No. 11-15896 D.C. No. 4:08-cv-01010-PJH
03-11-2013
DAVID LOUIS COSTELLA, Petitioner - Appellant, v. KENNETH CLARK, Warden; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondents - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted December 7, 2012
San Francisco, California
Before: TROTT and RAWLINSON, Circuit Judges, and BLOCK, Senior District Judge.
The Honorable Frederic Block, Senior U.S. District Judge for the Eastern District of New York, sitting by designation.
Petitioner David Louis Costella (Costella), who was convicted by a jury of child sexual abuse, challenges the district court's denial of his federal habeas petition premised on ineffective assistance of counsel.
We reject Appellees' contention that Costella's federal habeas petition was untimely.
The California state court's determination that Costella's trial counsel did not render ineffective assistance of counsel by failing to contact Costella's ex-girlfriends or otherwise investigate the victim's credibility was not unreasonable. Costella failed to demonstrate that clearly established precedent from the United States Supreme Court required Costella's trial counsel, in a non-capital case, to contact witnesses against Costella's wishes. See Strickland v. Washington, 466 U.S. 668, 691 (1984) ("[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. . . ."). The state court also reasonably held that Costella's trial counsel made strategic decisions to not attack the victim's credibility or seek additional expert testimony. See Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) ("In determining deficiency, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . .") (citation and internal quotation marks omitted).
In any event, the state court did not unreasonably apply Strickland in ruling that Costella was not prejudiced by his attorney's conduct. See Brodit v. Cambra, 350 F.3d 985, 994 (9th Cir. 2003) ("Reasonable minds can differ with the state court's conclusion. This case mainly rested, after all, on a swearing contest between the child and Petitioner. . . . But the very fact that the question is close dictates the outcome under our deferential standard of review. The [state court] did not apply Strickland unreasonably. . . .") (footnote reference omitted).
The district court properly denied Costella's discovery request as speculative, and his motion to expand the record as an impermissible challenge to the state court's evidentiary ruling. See Calderon v. U.S. Dist. Ct. for the N. Dist. of Cal., 98 F.3d 1102, 1106 (9th Cir. 1996) ("[C]ourts should not allow prisoners to use federal discovery for fishing expeditions to investigate mere speculation. . . .") (citation omitted); see also Rhoades v. Henry, 638 F.3d 1027, 1034 n.5 (9th Cir. 2011), as amended ("[E]videntiary rulings based on state law cannot form an independent basis for habeas relief.") (citation omitted).
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Costella's request for a certificate of appealablity on his Ex Post Facto claim is denied because he has failed to make "a substantial showing of the denial of a constitutional right. . . ." Muth v. Fondren, 676 F.3d 815, 822 (9th Cir. 2012), as amended; see also Renderos v. Ryan, 469 F.3d 788, 794-95 (9th Cir. 2006) (holding that Cal. Penal Code § 803 does not violate the Ex Post Facto Clause).
AFFIRMED.