Ernest Vaden v. D. Runnels, et al, No. 10-15029 (9th Cir. 2011)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 05 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ERNEST LEE VADEN, Petitioner - Appellant, No. 10-15029 D.C. No. 2:06-cv-01733-JAMGGH v. D. L. RUNNELS, Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, MEMORANDUM * Respondents - Appellees. Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding Argued and Submitted January 10, 2011 San Francisco, California Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges. Petitioner-Appellant Ernest Lee Vaden (Vaden) challenges the district court s denial of his federal habeas petition. Vaden asserted a claim based on ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. (1984). Additionally, Vaden raised an uncertified issue concerning the trial judge s failure to appoint substitute counsel to present Vaden s claim that his trial counsel was ineffective. 1. We agree with the district court that the state court did not unreasonably apply Strickland. [A] defendant claiming ineffective counsel must show that counsel s actions were not supported by a reasonable strategy and that the error was prejudicial. Massaro v. United States, 538 U.S. 500, 505 (2003). The state court did not unreasonably apply Strickland, because as it observed, the medical records were not especially probative regarding Vaden s intoxication defense. See Strickland, 466 U.S. at 689. 2. The district court was correct in denying habeas relief for Vaden s claim that counsel was ineffective for failing to call an expert witness to support his claim of intoxication. Assuming, without deciding, that counsel s performance was deficient, Vaden failed to establish prejudice, i.e., a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. As the magistrate judge noted, Vaden did not provide a declaration from any expert to support his claim that Activan 2 increased his intoxication. This lack of supporting documentation precludes a finding of prejudice. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001). 3. We do not address Vaden s uncertified claim, because he failed to ma[k]e a substantial showing of the denial of a constitutional right to warrant issuance of a certificate of appealability. Rhoades v. Henry, 598 F.3d 511, 518 (9th Cir. 2010) (citation omitted). AFFIRMED. 3
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