                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 28 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



AMOS NOLA OSBORN,                                No. 08-35631

              Petitioner - Appellant,            D.C. No. 1:05-CV-01196-CL

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                             Submitted June 11, 2010 **
                                 Portland, Oregon

Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, 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 Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
      Defendant Amos Nola Osborn, a state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 petition alleging ineffective assistance of counsel.

Osborn was convicted of two counts of aggravated murder following a bench trial

and was sentenced to life without the possibility of parole. He contends that his

counsel failed to advise him of the consequences of waiving a jury trial and failed

to call available mitigating witnesses at his sentencing hearing. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

      We review de novo the district court’s decision to deny a 28 U.S.C. § 2254

petition and look to the last reasoned state-court decision—here, the Oregon post-

conviction trial court decision. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.

2003), cert. denied, 541 U.S. 1037 (2004). We may grant a writ of habeas corpus

only if the state court’s decision was (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States” or (2) “based on an unreasonable determination of the

facts in light of the evidence presented.” 28 U.S.C. § 2254(d).

                                  Jury Trial Waiver

      Osborn contends the state court unreasonably applied the controlling

standard set out in Strickland v. Washington, 466 U.S. 668 (1984), in denying his




                                          2
ineffective assistance of counsel claim with regard to his jury trial waiver. We

disagree.

      Under the two-part Strickland test, counsel’s performance must have been

deficient and prejudiced the outcome. Strickland, 466 U.S. at 693-94. To establish

deficiency, Osborn “must show that counsel’s representation fell below an

objective standard of reasonableness.” Id. at 688. To establish prejudice, he “must

show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. He

cannot establish either.

      Osborn’s contention that his trial attorneys failed to explain the

consequences of waiving a jury trial lacks merit. Osborn signed a written jury trial

waiver acknowledging that he had consulted with counsel and later admitted in a

post-conviction deposition that his counsel reviewed the waiver with him. Osborn

also conceded that he reevaluated his jury waiver decision with new trial counsel,

who advised him to continue with a bench trial for strategic reasons.

      Osborn’s contention that his trial counsel unreasonably advised a jury trial

waiver before completing the investigation into his insanity defense also lacks

merit. Although Osborn’s expert neurologist did not evaluate him until after his

waiver, he was evaluated by his expert neuropsychologist two months before his


                                          3
waiver. As Osborn had already confessed to the murders, it was not unreasonable

for his counsel to advise a jury trial waiver in order to present his insanity defense

to a judge rather than a jury. That counsel advised Osborn to waive his right to a

jury trial after Osborn was evaluated by one, but not both, of his testifying experts

does not fall below an objective standard of reasonableness under the

circumstances of this case. Strickland, 466 U.S. at 688.

       Because Osborn has not established a Strickland error, we need not address

the prejudice prong. Id. at 697. In any event, Osborn cannot show prejudice in

light of the overwhelming evidence at trial that contradicted his insanity defense,

including his admission that he planned the murder and tried to cover it up

afterwards. A jury would have been no more likely to adopt his insanity defense

than the trial judge.

                                      Sentencing

       As a threshold matter, Osborn is not entitled to habeas relief under 28 U.S.C.

§ 2254(d)(1) because there is no clearly established Supreme Court precedent in

the noncapital sentencing context. Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.

2006); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.), cert. denied

546 U.S. 944 (2005). But, even if the Strickland standard for death penalty cases




                                           4
applied to this noncapital sentencing, as Osborn argues, his claim nevertheless fails

because he cannot establish prejudice. Strickland, 466 U.S. at 694.

        Osborn contends his counsel was ineffective for failing to present

mitigating witnesses at his sentencing hearing. Osborn relies on the affidavits of

five family members who stated they were available to testify at his sentencing but

were not called to do so. Their testimony, however, was unlikely to change the

result of the sentencing proceeding because the proposed testimony duplicated the

expert testimony given at trial and was outweighed by the evidence against

mitigation.

      As the trial judge recounted at sentencing, Osborn planned the murders, had

many opportunities to forgo his plan, was the first to shoot the victims, and tried to

cover-up the murders afterwards. Osborn also admitted that he killed the victims

even though he did not know them or have any problem with them. In light of this

evidence, there is no realistic probability that the result would have been different

had Osborn’s family members testified at his sentencing proceeding. Id. Because

Osborn failed to establish prejudice, his claim fails even when analyzed under

Strickland.




                                           5
                                 Mitigating Witnesses

      In rejecting Osborn’s ineffective assistance of counsel claim, the state court

concluded there were no mitigating witnesses who would have had the tendency to

affect the outcome of his sentencing proceeding. Osborn contends that this factual

determination was objectively unreasonable under 28 U.S.C. § 2254(d)(2) because

it overlooked, or ignored, the five affidavits from his family members. Osborn is

incorrect.

      The state court did not simply conclude that there were no mitigating

witnesses; it determined there were no mitigating witnesses who could have

affected the outcome of the sentencing proceeding. That determination was not

unreasonable given the family witnesses’ redundant testimony and the

overwhelming evidence against mitigation. See Taylor v. Maddox, 366 F.3d 992,

999 (9th Cir.), cert. denied, 543 U.S. 1038 (2004) (“[A] federal court may not

second-guess a state court’s fact-finding process unless . . . it determines that the

state court was not merely wrong, but actually unreasonable.”); 28 U.S.C. §

2254(e)(1).

                                      Conclusion

      Osborn’s ineffective assistance of counsel claims lack merit. The state court

decision was not an unreasonable application of clearly established federal law nor


                                           6
was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).

Osborn, therefore, is not entitled to habeas relief.

      AFFIRMED.




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