FILED
NOT FOR PUBLICATION JUL 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL MADAYAG, No. 09-17330
Petitioner - Appellant, D.C. No. 4:08-cv-04989-PJH
v.
MEMORANDUM *
MICHAEL S. EVANS, Warden; A.
HEDGPETH; ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted July 12, 2011 **
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and WRIGHT, 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 Otis D. Wright, II, United States District Judge for the
Central District of California, sitting by designation.
A jury in state court convicted Petitioner Michael Madayag, a California state
prisoner, of two counts of battery.1 Madayag was subsequently sentenced to two
concurrent terms of 25 years to life to run consecutively to his sentence for prior
convictions. He appeals the district court’s denial of his petition for a writ of habeas
corpus. We affirm.
Madayag’s habeas petition raises three grounds upon which his trial counsel
was constitutionally ineffective: (1) the failure to call two prison inmates as defense
witnesses; (2) the failure to object to evidence of Madayag’s prior criminal
convictions; and (3) the failure to request a “defense of others” jury instruction. His
petition fails on all three grounds.
First, the performance of Madayag’s trial counsel was not constitutionally
deficient because the decision not to have Lavea or Townsend take the witness stand
was an informed strategic choice. See Strickland v. Washington, 466 U.S. 668, 690
(1984) (holding that trial counsel’s informed strategic choices “are virtually
unchallengeable.”); Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)
(holding that trial counsel not required to interview witness where the potential
witness’ versions of events are fairly known to counsel). Regardless, trial counsel’s
1
The jury found Madayag to have committed battery on a prison guard and convicted
him of: (1) battery by a prisoner on a non-confined person pursuant to Cal. Penal Code § 4501.5;
and (2) battery with a serious bodily injury pursuant to Cal. Penal Code § 243(d).
2
performance was not prejudicial because Lavea and Townsend’s testimony would not
have been consistent with the defense theory – that the prosecution’s case lacked
evidence of Madayag actually approaching and assaulting the prison guard.
Accordingly, there is no reasonable probability that had either Lavea or Townsend
testified the result would have been different. See Strickland, 466 U.S. at 697 (“If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”).
Second, Madayag was not prejudiced by his trial counsel’s failure to object to a trial
exhibit containing abstracts of judgment of his prior convictions because the mere fact
that the jury may have seen a list of Madayag’s prior convictions does not establish
a reasonable probability that the jury would have reached a different result. Id.
Lastly, Madayag’s trial counsel was not ineffective in failing to request a “defense of
others” jury instruction because he made a tactical decision not to seek jury
instructions contradicting Madayag’s theory at trial that there was no evidence of
Madayag actually approaching and assaulting the prison guard. See Strickland, 466
U.S. at 690; Williams v. Woodford, 384 F.3d 567, 611-12 (9th Cir. 2004) (finding that
defense counsel was not ineffective for failing to present evidence that contradicted
the primary defense theory).
3
In light of the foregoing, all of Madayag’s claims fail, and the cumulative error
doctrine cannot apply as a result. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th
Cir. 2002). Furthermore, the district court was not obligated to conduct an evidentiary
hearing as “the record refutes [Madayag’s] factual allegations or otherwise precludes
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Regardless, an
evidentiary hearing was not necessary as the existing record was sufficient to resolve
Petitioner’s claims. See Cullen v. Pinholster, --- U.S. ----, 131 S. Ct. 1388, 1398
(2011) (holding that habeas “review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits”).
AFFIRMED.
4