Opinion
No. 10-36078 D.C. No. 6:08-cv-01367-AA
12-02-2011
MICHAEL EDWIN TERRY, Petitioner - Appellant, v. BRIAN BELLEQUE, Respondent - Appellee.
NOT FOR PUBLICATION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 District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted November 18, 2011
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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Portland, Oregon
Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.
Oregon state prisoner Michael Edwin Terry appeals the district court's denial of his petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. We conclude that the Oregon state courts did not unreasonably apply federal law in finding that Terry failed to affirmatively prove actual prejudice due to any deficiency in the performance of his attorney. Accordingly, we affirm.
Under Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. The state post-conviction relief court "assumed without deciding" that the performance of Terry's counsel was deficient but found under the Strickland standard that Terry suffered no prejudice as a result of his counsel's failure to investigate or raise an extreme emotional disturbance defense. Notably, Terry's own expert, Dr. Cochran, could only testify to "a possibility of EED that may have helped" Terry's defense (emphasis in original). The state court concluded that such a tentative conclusion would not have been admissible. Even if this evidence had been considered, it was not powerful enough to make a different verdict reasonably probable under Strickland. Moreover, Terry's own testimony provided little, if any, support for a defense based on extreme emotional disturbance. For these reasons, Terry has not met the high burden of showing that the state court's determination was unreasonable. See Knowles v. Mizayance, 556 U.S. 111, 129 S. Ct. 1411, 1420 (2009).
AFFIRMED.