FILED
NOT FOR PUBLICATION MAR 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KELLY DEAN WORTHAN, No. 11-35692
Petitioner - Appellant, D.C. No. 9:11-cv-00048-DWM
v.
MEMORANDUM *
ATTORNEY GENERAL OF THE STATE
OF MONTANA and LEROY
KIRKEGARD ,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted March 6, 2013
Portland, Oregon
Before: CLIFTON and BEA, Circuit Judges, and MAHAN, District Judge.**
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable James C. Mahan, District Judge for the U.S. District Court for the
District of Nevada, sitting by designation.
Appellant Kelly Dean Worthan (“Worthan”) appeals the district court’s
denial of his 28 U.S.C. § 2254 petition challenging his Montana convictions. This
court granted a certificate of appealability as to whether Worthan received
ineffective assistance of counsel at trial. We have jurisdiction under 28 U.S.C. §
2253. We review de novo, see McCormick v. Adams, 621 F.3d 970, 975 (9th Cir.
2010), and we affirm.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we may grant a habeas writ only if the state court decision is
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or “was
based on an unreasonable determination of the facts in light of the evidence
presented.” 28 U.S.C. § 2254(d)(1).
The applicable law in Worthan’s case is Strickland v. Washington, 466 U.S.
668 (1984), which is “clearly established Federal law” under the AEDPA. See
Harrington v. Richter, 131 S.Ct. 770, 785-86 (2011). “The standards created by
Strickland and § 2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so.” Id. at 788 (internal citations and quotations
omitted).
To prevail on a claim of ineffective assistance of counsel, Worthan must
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show: (1) that his trial counsel’s performance fell outside a wide range of
reasonableness, and (2) that he was prejudiced by that performance. Weighall v.
Middle, 215 F.3d 1058, 1062 (9th Cir. 2000) (citing Strickland, 466 U.S. at 691,
694).
First, Worthan claims ineffective assistance of counsel because his trial
counsel said she would call an expert, Dr. Michael Scolatti, during her opening
statement. Trial counsel never called Dr. Scolatti to the stand. The Montana
Supreme Court held there was no prejudice under Strickland because “Dr.
Scolatti’s testimony during sentencing actually supported the conclusion that the
State forensic interviews were conducted in a professional and proper manner.”
Worthan v. State, 232 P.3d 380, 384 (Mont. 2010). We find that the state court’s
decision was not an unreasonable application of Strickland.
Second, Worthan claims ineffective assistance of counsel because his trial
counsel failed adequately to assess the credentials of proposed defense expert
David Stube. The Montana Supreme Court held that trial counsel’s performance
was not deficient because trial counsel met with Stube, reviewed his curriculum
vitae, and discussed his Ph.D. with him. Worthan, 232 P.3d at 384. Further, the
state court found that Stube “glossed over or even misled” trial counsel regarding
his qualifications. Id. We find that the state court’s decision was not an
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unreasonable application of Strickland.
Upon the record as a whole, we are compelled to conclude that the state
court’s rejection of Worthan’s ineffective assistance of counsel claim was not
contrary to or an unreasonable application of clearly established federal law. See
Harrington, 131 S.Ct. at 786.
AFFIRMED.
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