FILED
NOT FOR PUBLICATION
SEP 20 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP ROGERS, No. 18-55102
Petitioner-Appellant, D.C. No. 2:16-cv-00901-JC
v.
MEMORANDUM*
DEBBIE ASUNCION, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Jacqueline Chooljian, Magistrate Judge, Presiding
Argued and Submitted September 11, 2019
Pasadena, California
Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Philip Rogers appeals the district court’s decision to deny his petition for a
writ of habeas corpus.1 We have jurisdiction under 28 U.S.C. § 2253.
Rogers failed to establish that his trial counsel rendered ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 694 (1984).
Even if Rogers’s trial counsel had introduced evidence that Mary Webster had .28
micrograms per milliliter of cocaine in her system at the time of the accident, there
is not a reasonable probability that the result of the proceeding would have been
different, given the jury was presented with evidence that Rogers had a high level
of intoxication at the time of the incident, was driving with a revoked license over
the speed limit, and had prior convictions for both driving under the influence of
alcohol and driving while having 0.08% alcohol or more in his blood. Further
supporting this conclusion, Rogers failed to introduce evidence that the cocaine in
Ms. Webster’s system had any intoxicating effect, and the video footage of the
incident presented to the jury did not show that Ms. Webster’s movements at the
time of the incident indicated intoxication. Because we conclude on de novo
review that Rogers failed to show that any deficient performance of trial counsel
1
We grant Rogers’s motions to take judicial notice of a Google map
depicting the intersection where the events at issue took place and to transmit to the
Court and take judicial notice of a video of the accident introduced during Rogers’s
trial in state court. See McCormack v. Hiedeman, 694 F.3d 1004, 1008 n.1 (9th
Cir. 2012); Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012).
2
prejudiced the defense, we need not reach the question whether we afford AEDPA
deference to the state court’s decision. See Berghuis v. Thompkins, 560 U.S. 370,
389 (2010).
AFFIRMED.
3