                                                                           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                           NOT FOR PUBLICATION                              JUN 21 2010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



DARRELL TYRONE NOBLE,                            No. 08-55004

              Petitioner - Appellant,            D.C. No. CV-06-01625-WQH

  v.
                                                 MEMORANDUM *
G. J. GIURBINO,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                        Argued and Submitted June 10, 2010
                               Pasadena, California

Before: TROTT and W. FLETCHER, Circuit Judges, and MAHAN, District
Judge.**

       Petitioner Noble was convicted by a jury in California in 2002 of serious

crimes arising from an automobile accident. His conviction was affirmed on direct

appeal. He then unsuccessfully sought relief in state court by way of habeas

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
corpus, contending that his trial counsel’s performance was prejudicially deficient,

as defined by Strickland v. Washington, 466 U.S. 668 (1984). At the end of the

day, those courts concluded, inter alia, that Noble did not demonstrate prejudice

from his attorney’s behavior.

      This appeal comes to us from our district court’s conclusion pursuant to 28

U.S.C. § 2254(d) and (e) that the state courts had reasonably found (1) that Noble’s

attorney had performed competently, and (2) that there was no showing of

prejudice.

      We affirm the judgment of the district court because we conclude after

examining the record that the state court’s determination of “no prejudice” arising

from his attorney’s disputed decisions was (1) legally sound, and (2) a reasonable

determination of the evidence presented. At trial Evans’ testimony under oath

when asked if she “might have grabbed the [steering] wheel” was, “If I did, I can’t

remember it.” This testimony renders her letter suspicious, and its use as evidence

might well have damaged Noble’s cause. In addition, the other evidence, including

Noble’s elevated blood alcohol level and his post-accident conduct, provides

independent support for the jury’s guilty verdict.

      Given all of the evidence introduced at trial, the district court’s decision not

to conduct an evidentiary hearing was not an abuse of discretion.


                                           2
AFFIRMED.




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