                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             SEP 15 2010

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

ANDREW J. ALLERDICE,                             No. 08-17281

              Petitioner - Appellant,            D.C. No. 3:07-cv-08049-NVW

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN, Director of the
Arizona Department of Corrections, and
ARIZONA ATTORNEY GENERAL,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                     Neil V. Wake, District Judge, Presiding

                      Argued and submitted August 30, 2010
                            San Francisco, California

Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.

       Petitioner-Appellant Andrew Allerdice timely appeals the district court’s

denial of his habeas corpus petition. Because the parties are familiar with the facts




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and procedural history of this case, we will discuss them only as necessary to

explain our decision.

      We review the denial of a petition for writ of habeas corpus de novo. Holley

v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (citation omitted). A writ may

only be granted on a claim adjudicated in state court if the state court proceeding

applied a legal rule that contradicts controlling Supreme Court authority, comes to

a different conclusion when presented with materially indistinguishable facts, or

identifies the correct legal standard but applies it in an objectively unreasonable

manner to the facts. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362,

404–13 (2000). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

      Allerdice first argues that his trial counsel’s stipulations constituted

ineffective assistance of counsel. To prevail on an ineffective assistance claim, a

petitioner must show that his counsel’s performance was deficient and that the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). Allerdice argues that prejudice should be presumed, because his

lawyer failed to subject the state’s case to “meaningful adversarial testing.” United

States v. Cronic, 466 U.S. 648, 659–60 (1984). For prejudice to be presumed,

counsel’s failure must be complete. Bell v. Cone, 535 U.S. 685, 696–98 (2002).

Here, although counsel stipulated to certain facts, he also obtained stipulations


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from the state regarding defense exhibits, offered evidence, cross-examined

witnesses, elicited favorable testimony, and presented a coherent if ultimately

unsuccessful defense in closing argument. This is not a complete failure to test the

State’s case. Thus, Strickland, rather than Cronic, governs assessment of

Allerdice’s ineffective assistance of counsel claim.

      Counsel was not ineffective. Strategic choices as to how to defend a case

are “virtually unchallengeable.” Strickland, 466 U.S. at 690. Counsel chose a

strategy of defending on lack of intent to defraud, bolstered by claims of poor

police work, after an adequate investigation; given the facts, the choice fell within

a “wide range of reasonable professional assistance.” Id. at 689. Moreover,

Allerdice cannot show that he was prejudiced, as his claim that the State was

unprepared to prove its case absent the stipulations is speculative. The Mohave

County Superior Court’s rejection of Allerdice’s ineffective assistance of counsel

claim was not objectively unreasonable. Williams, 529 U.S. at 409.

      Allerdice next contends that the stipulations, entered over his express

objection, constituted the “practical equivalent of a plea of guilty.” Brookhart v.

Janis, 384 U.S. 1 (1966). A plea of guilty is not just an admission of guilt, but an

agreement that no further proof by the prosecution is required; there is nothing to

do but impose judgment. Boykin v. Alabama, 395 U.S. 238, 242 (1969).


                                          3
      The Arizona court did not unreasonably reject this claim. First, it was not

fairly presented in state court. Picard v. Connor, 404 U.S. 270, 275–76 (1971).

Instead of relying on Brookhart, Allerdice framed his claim as an ineffective

assistance of counsel claim, predicated on a failure to reasonably inform. This was

inadequate to alert the state court to the controlling legal principles that he now

relies on. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Rose v.

Palmateer, 395 F.3d 1108, 1111–12 (9th Cir. 2005), cert. denied, 545 U.S. 1144

(2005); see also Picard, 404 U.S. at 277 (rejecting as procedurally defaulted an

equal protection claim that “entered this case only because the Court of Appeals

injected it”). Accordingly, Allerdice did not exhaust this claim. Id. at 275.

Because the time for Allerdice to raise this claim in state court has expired, Ariz.

R. Crim. P. 32.4, 32.1, he has procedurally defaulted it, and federal habeas relief is

unavailable absent cause and prejudice or a fundamental miscarriage of justice,

which Allerdice has not attempted to demonstrate. Engle v. Isaac, 456 U.S. 107,

125 n.28, 129 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).

      Second, even if not procedurally defaulted, Allerdice’s claim lacks merit.

The stipulations did not compare to a guilty plea. Defense counsel still vigorously

contested the state’s evidence, especially with respect to Allerdice’s mental state.

Moreover, counsel’s conduct in Allerdice’s trial was more like that in Florida v.


                                           4
Nixon, 543 U.S. 175, 188–89 (2004), than it was like that in Brookhart. In Nixon,

counsel conceded his client’s guilt in order to preserve his credibility to argue

mitigation at the penalty phase. The Nixon court determined that there was no

Brookhart violation, and that counsel’s actions did not violate the defendant’s

constitutional rights.

      Allerdice’s original claim of failure to reasonably inform was equally

unmeritorious. The record demonstrated that counsel began negotiating the

stipulations, with Allerdice’s knowledge, six months before trial. Further,

although Allerdice objected to the stipulations, he simultaneously rejected any plea

deal. He did not show lack of consultation or prejudice. However denominated,

the Mohave County Superior Court reasonably rejected Allerdice’s claim.

      AFFIRMED.




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                                           FILED
Allerdice v. Ryan, Case No. 08-17281       SEP 15 2010
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S. COURT OF APPEALS

     I concur in the result.
