DANIEL GUTIERREZ V. RICHARD BOCK, No. 13-16849 (9th Cir. 2015)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 24 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL OQUITA GUTIERREZ, Petitioner - Appellant, No. 13-16849 D.C. No. 4:12-cv-00712-DTF v. MEMORANDUM* RICHARD A. BOCK; ATTORNEY GENERAL OF THE STATE OF ARIZONA; CHARLES L. RYAN, Respondents - Appellees. Appeal from the United States District Court for the District of Arizona D. Thomas Ferraro, Magistrate Judge, Presiding Submitted September 16, 2015** San Francisco, California Before: CHRISTEN and FRIEDLAND, Circuit Judges and LEMELLE,*** 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 Ivan L.R. Lemelle, Senior District Judge for the U.S. District Court for the Eastern District of Louisiana, sitting by designation. After a shooting at a crowded party, an Arizona jury convicted Daniel Gutierrez on several counts of assault and one count of manslaughter. Gutierrez filed a petition for a writ of habeas corpus in state court alleging ineffective assistance of counsel. After that petition’s denial and several unsuccessful appeals, Gutierrez filed a petition for a writ of habeas corpus in the district court. The district court dismissed the petition and Gutierrez appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1 Gutierrez argues his counsel’s decision not to call Jose Baldenegro as a witness amounted to ineffective assistance. Gutierrez is not entitled to relief because the state court reasonably concluded that, even if counsel’s performance was deficient, Gutierrez had not “show[n] that the deficient performance prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668, 687 (1984); 28 U.S.C. § 2254(d)(1). Gutierrez’s DNA was on the gun used in the shooting and Baldenegro’s account would have been contradicted by that of two other witnesses. AFFIRMED 1 here. The parties are familiar with the facts, so we will not recount them
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