FILED
NOT FOR PUBLICATION JUN 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRANDON S. SMITHSON, No. 07-36071
Petitioner - Appellant, D.C. No. CV-05-00467-JMST
v.
MEMORANDUM *
GUY HALL,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, United States District Judge, Presiding
Submitted June 11, 2010 **
Portland, Oregon
Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, Senior
District Judge.***
*
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).
***
The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
Brandon S. Smithson, an Oregon state prisoner, appeals the denial of his 28
U.S.C. § 2254 habeas petition challenging his conviction by guilty plea and
sentence to 320 months imprisonment for the rape, sodomy, sexual abuse, and
attempted aggravated murder of two girls he was baby-sitting. Smithson argues
that trial counsel rendered ineffective assistance by failing to attend or cancel his
psychosexual evaluation when Smithson told him that he intended to make
incriminating statements to the psychologist. We have jurisdiction under 28
U.S.C. § 1291 and § 2253 and affirm.
As an initial matter, the State argues that Smithson failed to exhaust his
ineffective assistance claim and that it is now procedurally defaulted. We do not
reach this issue, but resolve this case on the merits of Smithson’s ineffective
assistance claim. See 28 U.S.C. § 2254(b)(2).
The state post-conviction court’s denial of Smithson’s post-conviction
petition was not “contrary to, or an unreasonable application of” the standard for
effective assistance claims established in Strickland v. Washington, 466 U.S. 668
(1984). 28 U.S.C. § 2254(d)(1). As the district court found, trial counsel’s advice
that Smithson undergo the evaluation but not disclose to the psychologist or an
attendant polygrapher any information regarding uncharged criminal conduct by
him was not deficient. If Smithson had followed counsel’s advice, he would have
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received a sentence of no more than 275 months, even if the district attorney made
no concession based on Smithson’s plea. Had he received a favorable evaluation,
he might have been able to negotiate a better plea offer. It was therefore entirely
reasonable for counsel to advise Smithson to submit to the evaluation but withhold
information regarding his other crimes. In addition, as the district court found,
“[i]t was not counsel’s advice that caused prejudice to [Smithson]; instead, it was
petitioner’s voluntary confession which occurred despite counsel’s advice.”
The attorney’s decision not to cancel the evaluation was a strategy call, and
not objectively deficient performance. See Strickland, 466 U.S. at 689 (requiring
“a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance”). And even assuming that counsel’s failure to
be present with Smithson at the evaluation was objectively unreasonable, his
absence did not cause Smithson prejudice. As the district court found, given that
Smithson’s confession was voluntary, “[w]hether counsel’s attendance at the
psychosexual evaluation would have resulted in no confession is pure speculation.”
AFFIRMED.
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