                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 14 2011

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



                           FOR THE NINTH CIRCUIT


MARCUS PULLIAM,                                  No. 09-55312

              Petitioner - Appellant,            D.C. No. 2:06-cv-01194- GAF-
                                                 MAN
  v.

DOMINGO URIBE, Jr., Warden,                      MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Gary A. Feess, District Judge, Presiding

                           Submitted October 12, 2011**
                               Pasadena, California

Before: FERNANDEZ and CALLAHAN, Circuit Judges, and ERICKSON, Chief
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 Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, Fargo, sitting by designation.
      Petitioner Marcus Pulliam appeals from the district court’s rulings denying

his writ of habeas corpus and denying a certificate of appealability. Pulliam was

originally convicted in California state court for the murders of Clifton and

Raymond Jones. Pulliam’s federal habeas corpus petition was filed after he had

exhausted his direct state appeals, and the California Supreme Court denied his

petition for habeas relief under state law. We granted Pulliam’s Request for a

Certificate of Appealability on a single issue: Whether counsel was ineffective for

failing to present readily available evidence showing that the key prosecution

witness lied about actually seeing the shooting and also tampered with the crime

scene before the police arrived. We affirm, and further hold that the district court

did not abuse its discretion in refusing to hold an evidentiary hearing.1

      We review the district court’s denial of a writ of habeas corpus de novo.

Cheney v. Washington, 614 F3d 987, 993 (9th Cir 2010). Under 28 U.S.C. §

2254(d), the availability of federal habeas relief is limited with respect to claims

previously adjudicated on the merits in state court proceedings, even when state

habeas relief was denied without an accompanying statement of reasons.

Harrington v. Richter, 131 S. Ct. 770, 781 (2011). The state court determination

that a habeas claim lacks merit must stand so long as “fairminded jurists could

      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
                                           2
disagree on the correctness of the state court’s decision.” Id. at 786. The rule in

Richter is combined with the traditional ineffective assistance of counsel test under

Strickland v. Washington, 466 U.S. 668 (1984), to establish the three elements a

state prisoner must meet to prevail on a federal § 2254 claim:

      (1)    the assistance of his lawyer was deficient;

      (2)    he has suffered prejudice by the deficiency; and

      (3)    the state court in denying the state habeas clam could not have

             reasonably concluded that counsel did not fail to provide adequate

             representation.

See Bell v. Cone, 535 U.S. 685, 698-99 (2002).

      We acknowledge that Trisha Tillman’s credibility is legitimately questioned

in light of the multiple versions of her eyewitness account that she provided to law

enforcement and the courts during the investigation and trial. Nevertheless, the

decision to use Tillman’s testimony for support, rather than attempt to impeach her

credibility, is a classic trial tactics decision that we cannot condemn through the

benefit of hindsight. “Strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” Knowles v.

Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420 (2009). Challenges to counsel’s

decisions regarding whether to call other witnesses were also similarly tactical in


                                          3
nature, or are irrelevant because the witnesses were not available to be called as

they could not be located. The first prong of the Strickland test cannot be satisfied,

and necessarily, the second prong must fail as well. Accordingly, the California

Supreme Court did not act unreasonably in denying Pulliam’s writ of habeas

corpus.

      We also hold that the district court did not abuse its discretion in denying an

evidentiary hearing in this matter. Review under 28 U.S.C. § 2254(d)(1) is limited

to the record that was before the state court that adjudicated the claim on the

merits. Cullen v. Pinholster, 131 S.Ct.1388, 1402 (2011). Pulliam has made no

showing that his claims rest on any facts that were unknown or undeveloped in the

state record, so an additional hearing was unnecessary.

      The district court properly denied Pulliam’s writ of habeas corpus.

      AFFIRMED.




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