Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding.
Christopher J. Schatz, Esq., FPDOR-Federal Public Defender's Office, Portland, OR, for Petitioner-Appellant.
Erika L. Hadlock, Office of the Attorney General, Salem, OR, for Respondent-Appellee.
Before ALARCON, RAWLINSON, Circuit Judges, and BYBEE, Circuit Judge.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Appellant Gary Herzog appeals the district court's denial of his habeas petition. Herzog contends that his trial counsel acted ineffectively by not conducting a personal inspection of an FBI database used to determine the likelihood that he was the source of semen found on two of the victims. We disagree. Even assuming defense counsel should have investigated the database, Herzog has not established a reasonable probability that the outcome of his trial would have differed. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). All four victims identified Herzog as their attacker, matched his clothing to the outfit worn by their assailant, and furnished a number of intimate details about the interior of Herzog's truck. Further, the prosecution introduced a considerable amount of probative, non-DNA physical evidence.
AFFIRMED.