Warren Miller v. Brian Belleque , 405 F. App'x 217 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 09 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
WARREN LEROY MILLER, No. 09-35971
Petitioner - Appellant, D.C. No. 3:07-cv-00169-MA
v.
MEMORANDUM *
BRIAN BELLEQUE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted December 7, 2010 **
Seattle, Washington
Before: O’SCANNLAIN, and TALLMAN, Circuit Judges, and EZRA, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Miller claims that his Sixth Amendment rights were violated when his trial
counsel, Janet Boytano, failed to investigate Debbie Barreras and failed to locate
other girls who had lived in Barreras’s foster home.
To prevail on a Sixth Amendment claim, Miller must demonstrate that his
counsel’s performance was deficient and that he was prejudiced by the deficiency.
Strickland v. Washington, 466 U.S. 668, 690–92 (1984). The state post-conviction
review (“PCR”) court found that Miller’s evidence demonstrated, at most, that
Boytano knew that one other girl who had previously lived with Barreras had made
false accusations of sexual abuse. The PCR court’s factual findings are entitled to
deference, and we conclude that they are not unreasonable in light of the evidence.
See 28 U.S.C. § 2254(e)(1). Given its findings, the PCR court’s conclusion—that
Boytano’s failure to investigate was not deficient—was a reasonable application of
Strickland. See id. § 2254(d).
Because Miller has failed to demonstrate that Boytano’s performance was
“professionally unreasonable,” we need not decide whether Miller was prejudiced
by Boytano’s failure to investigate. See Strickland, 466 U.S. at 691.
AFFIRMED.
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