                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                              MAY 15 2013

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

ENRIQUE R. BAUTISTA,                             No. 11-35542

              Petitioner - Appellant,            D.C. No. 3:08-cv-00546-PK

  v.
                                                 MEMORANDUM*
MARK NOOTH, Superintendent, SRCI,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                             Submitted May 10, 2013**
                                 Portland, Oregon

Before: KOZINSKI, Chief Judge, and BERZON and HURWITZ, Circuit Judges.

       Petitioner Enrique R. Bautista (“Bautista”) appeals from the district court’s

denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions for




        *
             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).
second degree assault on ineffective assistance of counsel (“IAC”) grounds. We

affirm.

      1. The state postconviction court’s (“PCR court”) denial of Bautista’s IAC

claim was not “based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Contrary to Bautista’s assertion, the PCR court did not make factual findings

relevant to his IAC claim. Rather, the challenged factual findings addressed a

separate assault charge not related to the incident underlying this appeal.

      2. Bautista’s assertion that his trial counsel provided constitutionally

ineffective assistance cannot surmount the “doubly deferential” standard of review

applicable to such claims brought in a § 2254 petition. See Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). The Oregon Court of Appeals summarily

affirmed the PCR court’s denial of Bautista’s IAC claim. Presuming—as we

must—that the Oregon court adjudicated Bautista’s claim on the merits, see

Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013), we conclude that there was a

reasonable basis for denying Bautista’s claim under both prongs of Strickland v.

Washington, 466 U.S. 668 (1984).

      Bautista’s trial counsel made a reasonable tactical decision not to cross-

examine Bautista’s co-defendant, Jose Leon-Chavez (“Leon-Chavez”). We “give[]


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great deference” to such “tactical decisions,” Dows v. Wood, 211 F.3d 480, 487

(9th Cir. 2000), particularly where, as here, it was “reasonably foreseeable” that

Leon-Chavez would have provided “damaging testimony if cross-examined at

trial.” Brown v. Uttecht, 530 F.3d 1031, 1037 (9th Cir. 2008). At the time of the

trial, Leon-Chavez had already given the police a statement inculpating Bautista,

and nothing in his post-trial affidavit suggests that he would have contradicted that

statement on cross-examination. See Silva v. Woodford, 279 F.3d 825, 852 (9th

Cir. 2002). In light of the uncertainty surrounding what Leon-Chavez would have

said if questioned, “[t]he state court could reasonably have concluded that counsel

made a legitimate tactical decision.” Richter v. Harrington, 643 F.3d 1238, 1240-

41 (9th Cir. 2011).

      Similarly, Bautista cannot show a “reasonable probability” that had his trial

counsel cross-examined Leon-Chavez, “the result of the proceeding would have

been different.” Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting

Strickland, 466 U.S. at 694). It is unclear what Leon-Chavez would have said

about the assaults had he been asked on cross-examination. And, even if Leon-

Chavez had provided testimony favorable to Bautista, that testimony would have

been contradicted by Leon-Chavez’s earlier statement to police and the testimony

of multiple eyewitnesses identifying Bautista as the assailant. The Oregon Court


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of Appeals’ decision was therefore reasonable under Strickland’s prejudice prong

as well.

      AFFIRMED.




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