Michael Terry v. Brian Belleque

FILED
NOT FOR PUBLICATION DEC 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL EDWIN TERRY, No. 10-36078
Petitioner - Appellant, D.C. No. 6:08-cv-01367-AA
v.
MEMORANDUM*
BRIAN BELLEQUE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted November 18, 2011**
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
*
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).
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.
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