FILED
NOT FOR PUBLICATION NOV 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNANTE PRE, No. 12-55468
Petitioner - Appellant, D.C. No. 3:07-cv-00890-W-WMC
v.
MEMORANDUM*
V. M. ALMAGER, Warden and BILL
LOCKYER, Attorney General of the State
of California,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted November 5, 2013
Pasadena, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Petitioner, Reynante Pre, appeals the district court’s denial of his petition for
a writ of habeas corpus.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Pre challenges the California Court of Appeal’s determination that his
torture conviction was supported by sufficient evidence. The California Court of
Appeal held that “[a] reasonable jury could have concluded [that the] injuries were
inflicted when [the victim] was unconscious, that is, during a period when Pre
could have left the apartment if his intent had only been to take her purse or to
defend himself against her attack and that these injuries were inflicted for the
purpose of inflicting severe pain for revenge or Pre’s sadistic pleasure.” People v.
Pre, 11 Cal. Rptr. 3d 739, 745 (Ct. App. 2004). Given the undisputed fact that Pre
choked his victim until she was unconscious, remained in her apartment and bit her
ear causing injuries that required one hundred stitches, and once again choked
Rose until she was unconscious a second time, the California Court of Appeal’s
determination that the evidence was sufficient to support Pre’s torture conviction
was not “contrary to, or . . . an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” nor was it
“based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)-(2).
Pre’s ineffective assistance of counsel claim based on his trial counsel’s
failure to interview the victim fails because Pre offers no proof that his trial
counsel failed to interview the victim, nor does Pre offer any evidence of what an
interview with the victim would have yielded that would have been beneficial to
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his defense. Moreover, Pre’s confession was videotaped and offered as evidence at
trial by the prosecution. Therefore, the California Court of Appeal’s decision was
not “unreasonable” because Pre did not satisfy Strickland’s prejudice prong, which
requires “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” 28 U.S.C. § 2254(d)(1)-(2);
Strickland v. Washington, 466 U.S. 668, 694 (1984).
Finally, Pre’s ineffective assistance of counsel claim based on his trial
counsel’s failure to object to Jury Question Three likewise fails because Pre did not
show that had his trial counsel objected to the jury question, there would have been
“a reasonable probability that . . . the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Pre cannot meet the highly deferential
standard required by the combination of 28 U.S.C. § 2254(d)(1)-(2) and Strickland.
See Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (“The standards created by
Strickland and § 2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so.”) (internal quotation marks and citations omitted).
AFFIRMED.
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