Opinion
Argued and Submitted March 14, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Ann C. McClintock, Federal Public Defender's Office, Sacramento, CA, for Petitioner--Appellee.
Brian Means, Office of the California Attorney General, Department of Justice, Sacramento, CA, for Respondent--Appellant.
Appeal from the United States District Court for the Eastern District of California;
Page 702.
Morrison C. England, Jr., District Judge, Presiding.
Before RYMER, W. FLETCHER, and CLIFTON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
The State of California appeals the district court's grant of an unconditional writ of habeas corpus to Thomas E. Brewster. Brewster claims that he suffered ineffective assistance of counsel on direct appeal before the California Court of Appeal. Though the parties agree that Brewster's appellate counsel's performance was deficient on direct review, Brewster has not shown a reasonable probability that the California Court of Appeal would have reversed the trial court's denial of his suppression motion but for his counsel's filing of a Wende brief. See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). He thus failed to establish that he was prejudiced by his counsel's performance. See id. at 286-87, 120 S.Ct. 746. Accordingly, we conclude that the district court erred in granting the habeas petition.
REVERSED.