ENRIQUE BAUTISTA V. MARK NOOTH, No. 11-35542 (9th Cir. 2013)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 15 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ENRIQUE R. BAUTISTA, Petitioner - Appellant, No. 11-35542 D.C. No. 3:08-cv-00546-PK v. MEMORANDUM* MARK NOOTH, Superintendent, SRCI, Respondent - Appellee. Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding Submitted May 10, 2013** Portland, Oregon Before: KOZINSKI, Chief Judge, and BERZON and HURWITZ, Circuit Judges. Petitioner Enrique R. Bautista ( Bautista ) appeals from the district court s denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions for * 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). second degree assault on ineffective assistance of counsel ( IAC ) grounds. We affirm. 1. The state postconviction court s ( PCR court ) denial of Bautista s IAC claim 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). Contrary to Bautista s assertion, the PCR court did not make factual findings relevant to his IAC claim. Rather, the challenged factual findings addressed a separate assault charge not related to the incident underlying this appeal. 2. Bautista s assertion that his trial counsel provided constitutionally ineffective assistance cannot surmount the doubly deferential standard of review applicable to such claims brought in a § 2254 petition. See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The Oregon Court of Appeals summarily affirmed the PCR court s denial of Bautista s IAC claim. Presuming as we must that the Oregon court adjudicated Bautista s claim on the merits, see Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013), we conclude that there was a reasonable basis for denying Bautista s claim under both prongs of Strickland v. Washington, 466 U.S. 668 (1984). Bautista s trial counsel made a reasonable tactical decision not to crossexamine Bautista s co-defendant, Jose Leon-Chavez ( Leon-Chavez ). We give[] 2 great deference to such tactical decisions, Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000), particularly where, as here, it was reasonably foreseeable that Leon-Chavez would have provided damaging testimony if cross-examined at trial. Brown v. Uttecht, 530 F.3d 1031, 1037 (9th Cir. 2008). At the time of the trial, Leon-Chavez had already given the police a statement inculpating Bautista, and nothing in his post-trial affidavit suggests that he would have contradicted that statement on cross-examination. See Silva v. Woodford, 279 F.3d 825, 852 (9th Cir. 2002). In light of the uncertainty surrounding what Leon-Chavez would have said if questioned, [t]he state court could reasonably have concluded that counsel made a legitimate tactical decision. Richter v. Harrington, 643 F.3d 1238, 124041 (9th Cir. 2011). Similarly, Bautista cannot show a reasonable probability that had his trial counsel cross-examined Leon-Chavez, the result of the proceeding would have been different. Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 694). It is unclear what Leon-Chavez would have said about the assaults had he been asked on cross-examination. And, even if LeonChavez had provided testimony favorable to Bautista, that testimony would have been contradicted by Leon-Chavez s earlier statement to police and the testimony of multiple eyewitnesses identifying Bautista as the assailant. The Oregon Court 3 of Appeals decision was therefore reasonable under Strickland s prejudice prong as well. AFFIRMED. 4
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