                                                                               FILED
                            NOT FOR PUBLICATION                                  JAN 29 2015

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



                            FOR THE NINTH CIRCUIT


WILLIE B. COLEMAN, III,                           No. 13-16054

              Petitioner - Appellant,             D.C. No. 2:09-cv-00020-DAD

  v.
                                                  MEMORANDUM*
D. K. SISTO, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Dale A. Drozd, Magistrate Judge, Presiding

                     Argued and Submitted December 10, 2014
                             San Francisco, California

Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.

       Petitioner Willie B. Coleman III appeals the district court’s denial of his

petition for writ of habeas corpus. Coleman alleges that his trial counsel provided

constitutionally deficient representation by promising the jury in his opening




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
statement that it would hear from an alibi witness when counsel did not ultimately

call the witness.1 We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      “We review de novo a district court’s denial of habeas corpus relief.” Miles

v. Ryan, 713 F.3d 477, 485 (9th Cir. 2013). The Antiterrorism and Effective Death

Penalty Act (“AEDPA”) permits federal habeas relief only if Coleman

demonstrates that the state court’s denial of his claim (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court” or (2) “was 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)(1)–(2). Review of ineffective assistance claims

under AEDPA is “doubly deferential,” and relief may be granted only if the state

court “unreasonably applied the more general standard for

ineffective-assistance-of-counsel claims established by” Strickland v. Washington,

466 U.S. 668 (1984). Saesee v. McDonald, 725 F.3d 1045, 1048 (9th Cir. 2013)

(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

      It was not unreasonable for the state court to conclude that Coleman’s trial

counsel’s “plan to use the alibi evidence and to mention it in his opening


      1
         Coleman does not challenge counsel’s mid-trial decision to forgo calling
the alibi witness. Coleman argues only that trial counsel should not have
mentioned the alibi witness in his opening statement unless counsel knew with
certainty that he would call the witness at trial.
statement” fell within “the wide range of reasonable professional assistance”

permitted by Strickland. Counsel focused his opening statement on the claim that

“[t]he evidence is going to show this is a case of mistaken identification,” and only

briefly mentioned the alibi defense towards the end of his statement. At the time

he gave his opening statement, counsel was aware “that the alibi evidence had . . .

weaknesses” but nonetheless decided to use the alibi testimony because the witness

“had not withdrawn his story despite intense questioning by police.” Only “[a]fter

seeing the prosecution’s case” did counsel “decide[] not to use the alibi evidence”

and rely instead on the strength of his mistaken identification defense.

      Given that Strickland mandates a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance,” 466

U.S. at 689, it was not objectively unreasonable for the state court to conclude that

counsel’s conduct satisfied Strickland’s forgiving standard. See Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004) (explaining that state courts enjoy “more

leeway” under AEDPA in applying general standards). Although trial counsel

submitted a declaration averring that “detailing alibi evidence in my opening

statement before hearing the prosecution’s case was not the result of a tactical

decision,” it was not objectively unreasonable for the state court to pay little heed

to counsel’s after-the-fact assessment of his trial strategy. See Harrington v.

Richter, 131 S. Ct. 770, 790 (2011) (“After an adverse verdict at trial even the most
experienced counsel may find it difficult to resist asking whether a different

strategy might have been better, and, in the course of that reflection, to magnify

their own responsibility for an unfavorable outcome. Strickland, however, calls for

an inquiry into the objective reasonableness of counsel’s performance, not

counsel’s subjective state of mind.”); Hendricks v. Calderon, 70 F.3d 1032, 1039

(9th Cir. 1995) (“[T]he latter-day emergence of [petitioner’s trial attorneys’] belief

in their own incompetence runs afoul of the rule of contemporary assessment.”).

Accordingly, we affirm the district court’s denial of Coleman’s petition. See 28

U.S.C. § 2254(d)(1); Harrington, 131 S. Ct. at 788.

      AFFIRMED.
