Steven Rose v. Connie Gipson , 539 F. App'x 842 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN ARNOLD ROSE, No. 11-55112
Petitioner - Appellant, D.C. No. 2:00-cv-02786-PA-CW
v.
MEMORANDUM*
CONNIE GIPSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted August 29, 2013
Pasadena, California
Before: O’SCANNLAIN, BEA, and CHRISTEN, Circuit Judges.
Petitioner Steven Arnold Rose appeals the district court’s denial of his
petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. He
argues that the California state court unreasonably applied clearly established
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
federal law by denying his habeas petition, which is based on an ineffective
assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668 (1984).
The state court reasonably applied federal law in denying Rose’s habeas
petition. Defense counsel’s decision not to call Tom Clemens as a witness did not
prejudice Rose. Introducing Clemens as a witness would have opened the door for
the prosecution to introduce Clemens’ damaging prior statements to law
enforcement, including his statement that Rose threatened to kill Pamela Terrick.
Moreover, any testimony Clemens could have offered to support Rose’s defense
would have been undermined by his failure to explain how Terrick sustained the
kinds of injuries she had when police arrived at the scene. Rose cites Howard v.
Clark, but a central reason we found prejudice in Howard was that the
prosecution’s case-in-chief was not very strong. 608 F.3d 563, 573 (9th Cir.
2010). Even assuming defense counsel was deficient, the prosecution’s case
against Rose was significantly stronger than it was in Howard.
By Rose’s own admission, his defense at trial was challenging, giving
defense counsel “very little to work with.” Brief for Appellant at 15. He has not
demonstrated “a reasonable probability that, but for counsel’s [alleged]
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 446 U.S. at 694. That is especially so given the “doubly” deferential
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standard for Strickland claims under AEDPA review. Harrington v. Richter, 131
S. Ct. 770, 788 (2011).
Having concluded that Rose fails to meet the prejudice prong of Strickland,
as did the California Court of Appeal, we need not discuss the deficient
performance prong. Stanley v. Schriro, 598 F.3d 612, 619 (9th Cir. 2010).
AFFIRMED.
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