                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 02 2011

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



                           FOR THE NINTH CIRCUIT


MICHAEL EDWIN TERRY,                             No. 10-36078

              Petitioner - Appellant,            D.C. No. 6:08-cv-01367-AA

  v.
                                                 MEMORANDUM*
BRIAN BELLEQUE,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                         Submitted November 18, 2011**
                                Portland, Oregon

Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.

       Oregon state prisoner Michael Edwin Terry appeals the district court’s

denial of his petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. We

conclude that the Oregon state courts did not unreasonably apply federal law in


        *
             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).
finding that Terry failed to affirmatively prove actual prejudice due to any

deficiency in the performance of his attorney. Accordingly, we affirm.

      Under Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on

a claim of ineffective assistance of counsel, a habeas petitioner must show that

counsel’s performance was deficient and that the deficient performance prejudiced

the defense. The state post-conviction relief court “assumed without deciding” that

the performance of Terry’s counsel was deficient but found under the Strickland

standard that Terry suffered no prejudice as a result of his counsel’s failure to

investigate or raise an extreme emotional disturbance defense. Notably, Terry’s

own expert, Dr. Cochran, could only testify to “a possibility of EED that may have

helped” Terry’s defense (emphasis in original). The state court concluded that

such a tentative conclusion would not have been admissible. Even if this evidence

had been considered, it was not powerful enough to make a different verdict

reasonably probable under Strickland. Moreover, Terry’s own testimony provided

little, if any, support for a defense based on extreme emotional disturbance. For

these reasons, Terry has not met the high burden of showing that the state court’s

determination was unreasonable. See Knowles v. Mizayance, 556 U.S. 111, 129 S.

Ct. 1411, 1420 (2009).

      AFFIRMED.


                                           2
