CURTIS HEALAN V. RAUL LOPEZ, No. 11-56559 (9th Cir. 2012)
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FILED DEC 19 2012 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT CURTIS W. HEALAN, No. 11-56559 Petitioner-Appellant, v. D.C. No. 2:10-cv08631-JAK-PLA MEMORANDUM RAUL LOPEZ, Warden, Corcoran State Prison Respondent-Appellee. Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding Submitted December 7, 2012 ** Pasadena, California * Before: IKUTA and NGUYEN, Circuit Judges, and BURNS, District Judge.*** California state prisoner Curtis Healan appeals from the district court s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. The California Court of Appeal s decision 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), because the trial judge s determination that Healan s counsel never fell asleep during trial, but functioned appropriately and competently, was supported by the evidence presented at the hearing, including the judge s own observations of counsel s trial performance. Cf. Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (trial judge was in good position to evaluate attorney s actual performance). Healan has not rebutted the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 Larry A. Burns, District Judge for the U.S. District Court for the Southern District of California, sitting by designation. *** 2 trial court s findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The California Court of Appeal s decision was neither contrary to nor an unreasonable application of Supreme Court precedent. 28 U.S.C. § 2254(d)(1). No Supreme Court case holds that prejudice shall be presumed in circumstances where the attorney may be mentally impaired. Dows, 211 F.3d at 484 86. Given the overwhelming evidence of Healan s guilt, he has not shown that he was prejudiced by any error he now assigns to his counsel. See Strickland v. Washington, 466 U.S. 668, 694 (1984). AFFIRMED. 3
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