Michael Tenore v. Rosanne Campbell

FILED
NOT FOR PUBLICATION JUN 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL TENORE No. 09-15427
Petitioner - Appellant, D.C. No. 3:06-cv-03992-CRB
v.
MEMORANDUM *
ROSANNE CAMPBELL, WARDEN OF
MULE CREEK STATE PRISON
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted April 12, 2010
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and MOODY, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James Maxwell Moody, Senior United States District
Judge for the Eastern District of Arkansas, sitting by designation.
Michael Tenore, a California state prisoner, appeals the district court's denial
of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction by bench
trial for forcible rape, aggravated sexual assault on a child and other crimes. We
have jurisdiction pursuant to 28 U.S.C. §2253. We review de novo the district
court’s denial of a habeas petition. Gill v. Ayers, 342 F.3d 911, 917 (9 th Cir. 2003).
Tenore argues that he did not voluntarily waive his right to a jury trial, that
he was denied his right to confront his accusers, that he had ineffective assistance
of counsel, and that the cumulative impact of the errors denied him due process of
law. He also claims that the district court erred when it denied him an evidentiary
hearing on his habeas claims.
The California Court of Appeal (on direct appeal) and the California
Superior Court (on habeas review) found that Tenore knowingly and voluntarily
waived his right to a jury trial, see Singer v. United States, 380 U.S. 24, 34 (1965),
and he and his counsel waived his right to confront and cross examine the
witnesses against him, see Wilson v. Gray, 345 F.2d 282, 286 (9 th Cir. 1965). The
record demonstrates that Tenore was fully aware of the scope of his rights to a jury
trial and to confront and cross examine witnesses. Tenore waived these rights
voluntarily as a matter of strategy. The state courts’ decisions were not “contrary
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to, or involve[] an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” nor were they “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d).
Tenore failed to show that his counsel's actions were outside the range of
professionally competent assistance or that his counsel’s alleged deficient
performance caused prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The state court's decision rejecting Tenore’s ineffective assistance of
counsel claim, therefore, was not “contrary to, or ... an unreasonable application of,
clearly established Federal law.” 28 U.S.C. § 2254(d)(1).
Tenore claims that the cumulative impact of the errors denied him his right
to due process of law. The evidence of Tenore’s guilt is overwhelming; thus, the
alleged errors were harmless. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).
Because Tenore failed to raise a colorable claim for relief, we reject
Tenore’s contention that an evidentiary hearing was required with regard to this
matter. See Earp v. Ornoski, 431 F. 3d 1158, 1167 (9 th Cir. 2005).
AFFIRMED.
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