                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 11 2013

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



                           FOR THE NINTH CIRCUIT


DAVID LOUIS COSTELLA,                            No. 11-15896

              Petitioner - Appellant,            D.C. No. 4:08-cv-01010-PJH

  v.
                                                 MEMORANDUM*
KENNETH CLARK, Warden;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                     Argued and Submitted December 7, 2012
                            San Francisco, California

Before: TROTT and RAWLINSON, Circuit Judges, and BLOCK, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Frederic Block, Senior U.S. District Judge for the
Eastern District of New York, sitting by designation.
      Petitioner David Louis Costella (Costella), who was convicted by a jury of

child sexual abuse, challenges the district court’s denial of his federal habeas

petition premised on ineffective assistance of counsel.1

      The California state court’s determination that Costella’s trial counsel did

not render ineffective assistance of counsel by failing to contact Costella’s ex-

girlfriends or otherwise investigate the victim’s credibility was not unreasonable.

Costella failed to demonstrate that clearly established precedent from the United

States Supreme Court required Costella’s trial counsel, in a non-capital case, to

contact witnesses against Costella’s wishes. See Strickland v. Washington, 466

U.S. 668, 691 (1984) (“[W]hen a defendant has given counsel reason to believe

that pursuing certain investigations would be fruitless or even harmful, counsel’s

failure to pursue those investigations may not later be challenged as unreasonable. .

. .”). The state court also reasonably held that Costella’s trial counsel made

strategic decisions to not attack the victim’s credibility or seek additional expert

testimony. See Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (“In

determining deficiency, a court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is,



      1
         We reject Appellees’ contention that Costella’s federal habeas petition
was untimely.
                                           2
the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. . . .”) (citation and

internal quotation marks omitted).

      In any event, the state court did not unreasonably apply Strickland in ruling

that Costella was not prejudiced by his attorney’s conduct. See Brodit v. Cambra,

350 F.3d 985, 994 (9th Cir. 2003) (“Reasonable minds can differ with the state

court’s conclusion. This case mainly rested, after all, on a swearing contest

between the child and Petitioner. . . . But the very fact that the question is close

dictates the outcome under our deferential standard of review. The [state court] did

not apply Strickland unreasonably. . . .”) (footnote reference omitted).2

      Costella’s request for a certificate of appealablity on his Ex Post Facto claim

is denied because he has failed to make “a substantial showing of the denial of a

constitutional right. . . .” Muth v. Fondren, 676 F.3d 815, 822 (9th Cir. 2012), as




      2
          The district court properly denied Costella’s discovery request as
speculative, and his motion to expand the record as an impermissible challenge to
the state court’s evidentiary ruling. See Calderon v. U.S. Dist. Ct. for the N. Dist.
of Cal., 98 F.3d 1102, 1106 (9th Cir. 1996) (“[C]ourts should not allow prisoners
to use federal discovery for fishing expeditions to investigate mere speculation. . .
.”) (citation omitted); see also Rhoades v. Henry, 638 F.3d 1027, 1034 n.5 (9th Cir.
2011), as amended (“[E]videntiary rulings based on state law cannot form an
independent basis for habeas relief.”) (citation omitted).
                                           3
amended; see also Renderos v. Ryan, 469 F.3d 788, 794-95 (9th Cir. 2006)

(holding that Cal. Penal Code § 803 does not violate the Ex Post Facto Clause).

      AFFIRMED.




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