FILED
NOT FOR PUBLICATION JUL 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM BELL, No. 14-35536
Petitioner - Appellant, D.C. No. 6:12-cv-02367-ST
v.
MEMORANDUM*
ROB PERSSON,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mossman, District Judge, Presiding
Submitted July 8, 2015**
Portland, Oregon
Before: N.R. SMITH and OWENS, Circuit Judges, and HAYES,*** District Judge.
Appellant William Bell, an Oregon state prisoner, appeals the district court’s
denial of his petition for a writ of habeas corpus. Pursuant to a plea agreement,
*
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 William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
Appellant pled guilty to four counts of unlawful use of a firearm and one count of a
felon in possession of a firearm in exchange for the government dismissing three
counts of attempted murder. Appellant alleges that his guilty plea was not
knowing and voluntary, due to his trial counsel’s ineffective assistance in failing to
investigate his case. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we
affirm.
We review the district court’s denial of a habeas petition de novo. See Smith
v. Swarthout, 742 F.3d 885, 892 (9th Cir. 2014). Under the Antiterrorism and
Effective Death Penalty Act (AEDPA), habeas relief can only be granted if the
state court proceeding which adjudicated the claim on the merits “(1) resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d). We review the Marion County Circuit Court’s post-conviction relief
decision in this matter, as it is “the ‘last reasoned state court decision’ addressing
[Appellant’s] claims.” Smith, 742 F.3d at 892 (citation omitted).
In this case, Appellant contends that the Marion County Circuit Court’s
denial of his ineffective assistance of counsel claim was based on an “unreasonable
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determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Appellant contends that his trial counsel
performed deficiently by failing to interview several witnesses. Appellant asserts
that, had these witnesses been interviewed, trial counsel would have advised
Appellant to reject the plea deal, and Appellant would have insisted on going to
trial.
An ineffective assistance of counsel claim has two components. “First, the
defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). “Second, the defendant must show that the
deficient performance prejudiced the defense.” Id. Where, as here, the petitioner
alleges that his trial counsel’s ineffective assistance resulted in a guilty plea that
was not knowing and voluntary, the petitioner must show a “reasonable probability
that, but for counsel’s [deficiency], he would not have pleaded guilty and would
have insisted on going to trial.” Premo v. Moore, 562 U.S. 115, 129 (2011); Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Appellant has failed to demonstrate that the
circuit court unreasonably determined the facts in concluding that Appellant did
not satisfy the requirements of Strickland.
3
The record supports the following pertinent circuit court findings: (1)
Appellant failed to submit credible evidence demonstrating that trial counsel failed
to contact and interview all relevant witnesses; and (2) Appellant failed to submit
credible evidence demonstrating that there were relevant witnesses who would
have been able to offer credible and helpful testimony. First, three of the five
witnesses did not testify before the circuit court in support of Appellant’s post-
conviction petition. Any failure of the circuit court to consider their likely trial
testimony was not unreasonable.1 Second, the record supports the circuit court’s
finding that witness Eugene Robinson’s testimony would not have been helpful to
Appellant’s defense. Robinson’s post-conviction affidavit was consistent with his
own statements to police and did not provide Appellant with a defense. Finally, it
was not unreasonable to find that witness Kevin Smith’s post-conviction testimony
was not credible. The circuit court’s finding was based on the following factual
findings: (1) Smith was biased in favor of Appellant; (2) Smith was angry about
the length of Appellant’s sentence; and (3) Smith would be impeached by his own
prior inconsistent statements to police. The circuit court’s conclusion—that
1
Appellant does not contend that these witnesses would have provided him
with a defense. Instead, Appellant contends that these witnesses would have
impeached the credibility of two victims with respect to Appellant’s motive for
committing the offenses.
4
Appellant failed to satisfy the requirements of Strickland—was not based on an
“unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2); see Strickland, 466 U.S. at 691
(“[W]hen a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.”). Accordingly, the
district court did not err in denying habeas relief.
AFFIRMED.
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