Cecrle v. Terhune , 156 F. App'x 961 ( 2005 )

MEMORANDUM ^***

1. We may set aside the conviction under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), only where counsel’s performance falls below an objective standard of reasonableness and the defendant is prejudiced by the deficient performance. See id. at 688, 694, 104 S.Ct. 2052. Because the jury was instructed that it could consider voluntary intoxication in assessing petitioner’s mental state, “competent counsel could reasonably conclude that the instructions adequately advised the jury to consider the evidence of intoxication on the question of premeditation, and that an additional instruction stating the obvious — that premeditation is a mental state — was unnecessary.” People v. Castillo, 16 Cal.4th 1009, 68 Cal.Rptr.2d 648, 945 P.2d 1197, 1201 (1997).

2. Although it is doubtful whether petitioner exhausted his claim that there was “an actual breakdown of the adversarial process during the trial,” United States v. Cronic, 466 U.S. 648, 657-58, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), we deny the claim on the merits, see 28 U.S.C. § 2254(b)(2). Petitioner’s trial counsel raised multiple defenses, including voluntary intoxication, involuntary intoxication and heat-of-passion. Petitioner provides no persuasive evidence for his claim that “counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039.

AFFIRMED.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.