                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 14 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


CORBETT Le GRAND,                                No. 12-16085

              Petitioner - Appellant,            D.C. No. 4:09-cv-00370-SBA

  v.
                                                 MEMORANDUM*
JAMES A. YATES, Warden,

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                 Saundra B. Armstrong, District Judge, Presiding

                      Argued and Submitted August 14, 2014
                            San Francisco, California

Before:       TASHIMA, McKEOWN, and CLIFTON, Circuit Judges.

       Petitioner Corbett Le Grand (“Le Grand”) was convicted in California state

court of one count of sexual penetration of a minor and one count of lewd and

lascivious acts involving a child under 14. In this proceeding under 28 U.S.C. §

2254, Le Grand challenges his conviction based on ineffective assistance of trial



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
counsel under Strickland v. Washington, 466 U.S. 668 (1984). The district court

denied Le Grand’s petition. Reviewing the district court’s denial of the petition de

novo and its factual findings for clear error, Brown v. Ornoski, 503 F.3d 1006,

1010 (9th Cir. 2007), we affirm.

       1.     Le Grand first contends that his trial counsel was ineffective for

failing to discover his alibi for the nights the offenses occurred. The offenses for

which Le Grand was convicted occurred sometime during the night of March 13 or

14, 2003, while Le Grand was on an overnight camping trip with the victim and

another man. At trial, Le Grand’s counsel presented as an alibi witness Le Grand’s

father, who testified that Le Grand was living with him during the relevant time

period and was always home by 9 p.m., so that he could not have been camping

with the victim on the night the offenses occurred. After trial, Le Grand came

forward with a different alibi, asserting that he was living with his then-girlfriend

during the relevant time period and was with her when the offenses were alleged to

have occurred. He asserts that his trial counsel was ineffective for failing to

discover and present this alibi at trial.

       This question is beyond the scope of the Certificate of Appealability

(“COA”) issued by this Court; therefore, it is unreviewable. See 28 U.S.C. §

2253(c)(1) & (3). Even if we were to expand the COA, we would not find Le


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Grand’s claim to be meritorious. There is no evidence suggesting that Le Grand’s

attorney was aware, or had any reason to be aware, at any time before trial that Le

Grand was purportedly with his then-girlfriend on the night the offenses were

alleged to have occurred. Le Grand’s attorney cannot be faulted for failing to

discover an alibi about which his client never told him. See cf. Luna v. Cambra,

306 F.3d 954, 961-62 (9th Cir. 2002), mandate recalled and reissued as amended

by Luna v. Cambra, 311 F.3d 928 (9th Cir. 2002); Lord v. Wood, 184 F.3d 1083,

1096 (9th Cir. 1999).

      Although the state court denied Le Grand’s state habeas petition without

explanation, Le Grand’s burden on federal habeas review remains the same. See

Harrington v Richter, 131 S. Ct. 770, 784 (2011). Therefore, applying the doubly

deferential standard of Strickland and the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), see Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011),

we conclude “that counsel’s representation was within the ‘wide range’ of

reasonable professional assistance.” Harrington v. Richter, 131 S. Ct. 770, 787

(2011) (quoting Strickland, 466 U.S. at 689).

      2.     Le Grand also contends that his attorney rendered ineffective

assistance of counsel when he brought a motion for a new trial based on an alibi for

the wrong night: The offenses were alleged to have occurred on March 13 or 14,


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2003, but Le Grand’s attorney submitted evidence in his motion for a new trial

accounting for Le Grand’s whereabouts on March 15, 2003. We need not decide

whether this amounted to deficient performance under Strickland because, even

assuming that it did, no prejudice resulted. See Wharton v. Chappell, 765 F.3d

953, 975 (9th Cir. 2014) (stating that where no prejudice is shown, the “court need

not reach the performance prong”). Le Grand’s alibi evidence would not have

been grounds for a new trial because that evidence was not newly discovered.

      Based on the foregoing, the judgment of the district court is AFFIRMED.




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