                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 21 2010

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




                            FOR THE NINTH CIRCUIT



CHARLES KELLY CHAVEZ,                            No. 08-17191

              Petitioner - Appellant,            D.C. No. 2:03-cv-00173-KJD-LRL

  v.
                                                 MEMORANDUM *
JACKIE CRAWFORD and JAMES
SCHOMIG,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                             Submitted June 15, 2010 **
                              San Francisco, California

Before: O’SCANNLAIN, TASHIMA, BEA, Circuit Judges.




        *
             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).

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      Charles Chavez (“Chavez”) appeals from the district court’s denial of his 28

U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction pursuant

to 28 U.S.C. § 2253 and we affirm.

      Chavez was convicted in Nevada state court of the first-degree murder of his

girlfriend Jamie Rodgers (“Jamie”), robbery, and unlawful use of an ATM card for

withdrawal of money. Under the Antiterrorism and Effective Death Penalty Act,

we can grant a habeas petition only if the state court’s adjudication of the claims

“resulted in a decision that was contrary to, or involved an unreasonable

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

Court of the United States.” 28 U.S.C. § 2254(d).

      Chavez raised three claims of ineffective assistance of counsel. The Nevada

Supreme Court rejected all of his claims on the ground that Chavez could not show

that his counsel’s failures prejudiced him under the second prong of Strickland v.

Washington, 466 U.S. 668 (1984), because of the overwhelming evidence of his

guilt. This decision was not an unreasonable application of Strickland.

1.    Chavez contends his counsel was ineffective because counsel did not call

Debbie Goldasich or Linda Pirolli to testify and did not cross-examine thoroughly

enough Stacey Bell and Tracey Chavez. The Nevada Supreme Court denied this

claim on grounds that counsel’s decisions were tactical and Chavez could not


                                          2
establish prejudice because there was no reasonable probability the testimony of

these witnesses would have changed the verdict in light of the overwhelming

evidence of Chavez’s guilt. This was not an unreasonable application of

Strickland; counsel’s tactical decisions were reasonable, the evidence against

Chavez was overwhelming. The coroner testified that Jamie’s injuries

conclusively demonstrated that she had been strangled and had not drowned.

Chavez admitted to being present with Jamie at Lake Mead on the night she died,

and DNA testing confirmed that Jamie’s blood was on the shirt Chavez had worn

that night. Chavez had also told three inconsistent versions of what had happened

to Jamie, all of which the jury heard. The Nevada Supreme Court reasonably

concluded there was no prejudice to Chavez.

2.    Chavez contends his counsel was ineffective because counsel did not object

to the coroner’s testimony that Jamie had a vaginal bruise that pre-dated the night

of her death that would have made sexual intercourse painful. The prosecutor used

this testimony in closing argument in combination with the fact Chavez’s semen

was discovered in Jamie’s vagina to suggest that, because intercourse would have

been painful, Jamie would not have consented to having sex with Chavez.

However, Chavez was never charged with rape.




                                          3
      The Nevada Supreme Court held that Chavez could not establish prejudice.

Faced with the overwhelming evidence of Chavez’s guilt described above, there

was no reasonable probability the outcome would have been different even if the

jury were not left with the impermissible inference that Chavez had raped Jamie.

This was not an unreasonable application of Strickland.

3.    Chavez contends his counsel was ineffective because counsel failed to object

to several instances of “prosecutorial misconduct” during closing argument.

Chavez claims the prosecutor improperly: asked the jury to put themselves in the

place of the defendant; made “derogatory” comments about Chavez; made

statements of personal opinion; and made an argument regarding facts not in

evidence. The Nevada Supreme Court held that Chavez could not establish

prejudice because the prosecutor’s comments were not egregious and the evidence

against Chavez was overwhelming. Thus, there was no reasonable probability that

the outcome would have been different had Chavez’s counsel objected. This was

not an unreasonable application of Strickland.

      AFFIRMED.




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