FILED
NOT FOR PUBLICATION JUL 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAUSTINO CORONA, No. 11-55390
Petitioner - Appellant, D.C. No. 2:08-cv-01393-ABC-
AGR
v.
V. M. ALMAGER, Warden, Centinela MEMORANDUM*
State Prison,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted June 5, 2013
Pasadena, California
Before: THOMAS, SILVERMAN and FISHER, Circuit Judges.
Faustino Corona appeals the district court’s order dismissing his petition for
a writ of habeas corpus, which challenges his conviction for attempted,
premeditated murder. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Corona contends that his trial counsel, Richard Pintal, provided ineffective
assistance by failing to conduct an adequate investigation into the extent of
Corona’s intoxication at the time of the crime, failing to adequately research the
law on the voluntary intoxication defense and failing to present sufficient evidence
at trial to obtain a jury instruction on voluntary intoxication. Corona has presented
no evidence establishing the extent of Pintal’s investigation or the sufficiency of
Pintal’s legal research. The newly proffered declarations from witnesses with
information about the extent of Corona’s intoxication do not establish the
inadequacy of the investigation, because they do not establish that Pintal failed
altogether to contact pertinent witnesses or obtain comparable evidence from other
sources. We therefore cannot conclude that the state court’s dismissal of Corona’s
ineffective assistance of counsel claim was “necessarily unreasonable.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011); see also 28 U.S.C. § 2254(d).
Given the considerable latitude trial counsel has in making tactical decisions,
see Strickland v. Washington, 466 U.S. 668, 689 (1984), Pintal’s chosen defense
strategy – exploiting the victims’ inconsistent statements in hopes of creating
reasonable doubt, rather than focusing on Corona’s intoxication – does not fall
outside the “wide range of reasonable professional assistance” deemed adequate
under the Fifth Amendment, see id.
2
Corona also suffered no prejudice from the alleged deficient representation
because the jury is unlikely to have found that Corona lacked the requisite mental
state even if the additional evidence had been presented. The jury heard ample
evidence of Corona taking purposeful, deliberate actions in his attempt to kill his
victims: he confronted his wife about another party-goer, beat her, picked up a
rifle, loaded the rifle with at least seven bullets, pointed the rifle at his wife, pulled
the trigger, pointed the rifle at his wife’s friend, pulled the trigger and had the
presence of mind to leave before the police arrived. Thus, even if Pintal had
presented the newly proffered evidence and obtained a jury instruction on
voluntary intoxication, there is not a “substantial . . . likelihood of a different
result.” Pinholster, 131 S. Ct. at 1403 (internal quotation marks omitted) (quoting
Harrington v. Richter, 131 S. Ct. 770, 791 (2011)).
AFFIRMED.
3