Noble v. Giurbino

FILED
NOT FOR PUBLICATION JUN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DARRELL TYRONE NOBLE, No. 08-55004
Petitioner - Appellant, D.C. No. CV-06-01625-WQH
v.
MEMORANDUM *
G. J. GIURBINO,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted June 10, 2010
Pasadena, California
Before: TROTT and W. FLETCHER, Circuit Judges, and MAHAN, District
Judge.**
Petitioner Noble was convicted by a jury in California in 2002 of serious
crimes arising from an automobile accident. His conviction was affirmed on direct
appeal. He then unsuccessfully sought relief in state court by way of habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
corpus, contending that his trial counsel’s performance was prejudicially deficient,
as defined by Strickland v. Washington, 466 U.S. 668 (1984). At the end of the
day, those courts concluded, inter alia, that Noble did not demonstrate prejudice
from his attorney’s behavior.
This appeal comes to us from our district court’s conclusion pursuant to 28
U.S.C. § 2254(d) and (e) that the state courts had reasonably found (1) that Noble’s
attorney had performed competently, and (2) that there was no showing of
prejudice.
We affirm the judgment of the district court because we conclude after
examining the record that the state court’s determination of “no prejudice” arising
from his attorney’s disputed decisions was (1) legally sound, and (2) a reasonable
determination of the evidence presented. At trial Evans’ testimony under oath
when asked if she “might have grabbed the [steering] wheel” was, “If I did, I can’t
remember it.” This testimony renders her letter suspicious, and its use as evidence
might well have damaged Noble’s cause. In addition, the other evidence, including
Noble’s elevated blood alcohol level and his post-accident conduct, provides
independent support for the jury’s guilty verdict.
Given all of the evidence introduced at trial, the district court’s decision not
to conduct an evidentiary hearing was not an abuse of discretion.
2
AFFIRMED.
3