Opinion
The 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NOT FOR PUBLICATION.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)
State prisoner filed habeas corpus petition, alleging that his trial counsel was ineffective for failing to call several witnesses at trial. The United States District Court for the District of Nevada, Edward C. Reed, Jr., denied petition, and prisoner appealed. The Court of Appeals held that prisoner failed to overcome strong presumption that defense counsel's decision not to call witnesses was a reasonable tactical decision and sound trial strategy.
Affirmed.
Page 583.
Appeal from the United States District Court for the District of Nevada Edward C. Reed, Jr., District Judge, Presiding.
Before LEAVY, THOMAS and RAWLINSON, Circuit Judges.
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.
Nevada state prisoner Michael D. Jacobs appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition alleging that his trial counsel was ineffective for failing to call several witnesses at trial. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
We review a district court's denial of a habeas petition de novo. See Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir.1997). Under the Antiterrorism and Effective Death Penalty Act of 1996, we may only disturb a state court's determination of law if it resulted in a decision which was contrary to or an unreasonable application of clearly established Federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.), cert. denied, 531 U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274, 69 U.S. L.W. 3156 (2000). A claim of ineffective assistance of counsel is examined under the "unreasonable application" prong of § 2254(d). See Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir.2000).
Jacobs contends that his trial counsel rendered ineffective assistance by failing to call Gerald Childs as a witness. This contention is without merit. At an evidentiary hearing in state court, counsel stated that he chose not to call Childs as a witness because he was subject to strong impeachment and because his testimony could open the door to inculpatory evidence. Because Jacobs has not overcome the strong presumption that this was a reasonable tactical decision and sound trial strategy, see Strickland v. Washington, 466 U.S. 668, 687-90, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we cannot say that the state court's denial of this claim was clearly erroneous, see Williams, 120 S.Ct. at 1519; Van Tran, 212 F.3d at 1153-54.
Jacobs also contends that counsel rendered ineffective assistance by failing to call Michael Prowell as a witness. This contention is also without merit. The evidentiary hearing established that Prowell was also subject to strong impeachment and that counsel obtained similar beneficial testimony from a more credible witness. Jacobs has not overcome the strong presumption that counsel's failure to call Prowell was a sound tactical decision. See Strickland, 466 U.S. at 687-90, 694; United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.1988) (counsel's failure to call a witness who is subject to impeachment is not ineffective assistance). Thus, we cannot say that the state court's denial of this claim was clearly erroneous. See Williams, 120 S.Ct. at 1519; Van Tran, 212 F.3d at 1153-54.
Accordingly, because Jacobs has not demonstrated that the state court's denial of this habeas petition was clearly erroneous, the district court properly denied his petition. See Williams, 120 S.Ct. at 1519; Van Tran, 212 F.3d at 1153-54; Johnson v., 114 F.3d at 838.
AFFIRMED.