FILED
NOT FOR PUBLICATION DEC 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONOVAN PHIPPS, No. 09-15790
Petitioner-Appellant, D.C. No. 07-CV-0087WBS-CHS
v.
MEMORANDUM *
MIKE EVANS, et al.,
Respondents-Appellees.
Appeal from the United States District Court
for the Easter District of California
William B. Shubb, District Judge, Presiding
Submitted November 1, 2010 **
San Francisco, California
Before: HALL and THOMAS, Circuit Judges, and LASNIK,
Chief District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 S. Lasnik, Chief United States District Judge for the
Western District of Washington, sitting by designation.
Donovan Phipps, an inmate in the California prison system, appeals from a
final order of the United States District Court denying his petition for writ of
habeas corpus. Phipps contends that his trial counsel was ineffective in a number
of ways and seeks an evidentiary hearing at which he hopes to question counsel
regarding his litigation choices to “flesh out” his claims.
Based on an independent but deferential review of the record (Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)), it was not unreasonable for the state
court to deny Phipps’ ineffective assistance of counsel claim. Phipps has not
shown that (1) counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
688, 694 (1984). “Our review of counsel’s performance for constitutional
deficiency ‘must be highly deferential’ and should include every effort ‘to
eliminate the distorting effects of hindsight[.]’” Earp v. Ornoski, 431 F.3d 1158,
1174 (9th Cir. 2005) (alteration in original) (quoting Strickland, 466 U.S. at 689).
While a second-degree murder conviction arising out of a vehicular accident
is not the norm, the outcome of a trial does not determine whether defense counsel
was “effective” or “ineffective.” See Strickland, 466 U.S. at 689. The record
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shows that defense counsel conducted a reasonable investigation and pursued a
trial strategy based on the evidence presented by the eyewitnesses and medical
professionals. The fact that Phipps, with the benefit of hindsight, wishes that other
tactics had been attempted and/or other witnesses had been called does not
establish a colorable claim for habeas relief under Strickland. The district court
therefore did not abuse its discretion in denying the habeas petition without
conducting an evidentiary hearing. See West v. Ryan, 608 F.3d 477, 490 (9th Cir.
2010).
AFFIRMED.
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