ROBERT HOLLENBACK V. CHARLES RYAN, No. 13-17464 (9th Cir. 2016)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 08 2016 MOLLY C. DWYER, CLERK ROBERT MICHAEL HOLLENBACK, Petitioner - Appellant, No. 13-17464 U.S. COURT OF APPEALS D.C. No. 4:10-cv-00333-FRZ v. MEMORANDUM* CHARLES L. RYAN and ATTORNEY GENERAL OF THE STATE OF ARIZONA, Respondents - Appellees. Appeal from the United States District Court for the District of Arizona Frank R. Zapata, Senior District Judge, Presiding Submitted July 6, 2016** San Francisco, California Before: SILVERMAN and NGUYEN, Circuit Judges and GARBIS,*** Senior District Judge. * 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 Marvin J. Garbis, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation. Robert Hollenback appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his Arizona conviction for molestation of a child. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and review de novo. Matylinsky v. Budge, 577 F.3d 1083, 1090 (9th Cir. 2009). The state courts reasonably applied Strickland v. Washington, 466 U.S. 668 (1984), when they held that trial counsel made a reasonable tactical decision not to request a lesser-included attempt jury instruction that conflicted with Hollenback’s defense that he “did not try to touch” the child. Defense counsel is not required to request instructions that are inconsistent with the defense. See Matylinsky, 577 F.3d at 1092; Butcher v. Marquez, 758 F.2d 373, 377 (9th Cir. 1985). The request to expand the certificate of appealability is denied. AFFIRMED. 2

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