                                                                             FILED
                             NOT FOR PUBLICATION                              NOV 01 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



TONY ALLEN, JR.,                                 No. 10-15643

               Plaintiff - Appellant,            D.C. No. 2:06-cv-01923-FCD-
                                                 DAD
          v.

MARK SHEPARD, Warden Folsom State                MEMORANDUM *
Prison,

               Defendant - Appellee.

                    Appeal from the United States District Court
                        for the Eastern District of California
                Frank C. Damrell, Jr., Senior District Judge, Presiding

                       Argued and Submitted August 30, 2011
                             San Francisco, California

Before: FISHER and RAWLINSON, Circuit Judges, and TIMLIN, District
        Judge.**

      Tony Allen Jr. appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291, 2253, and we

affirm.

           *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
        The Honorable Robert J. Timlin, Senior United States District Judge for
the Central District of California, sitting by designation.
      Allen is not entitled to habeas relief because the California Court of

Appeal’s decision that Allen’s trial counsel, James Sherriff, did not render

ineffective assistance was not “contrary to,” or an “unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” nor was it “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).

      Sherriff’s decision to forgo further investigation into victim David Bell’s

violent history was reasonable under Strickland v. Washington, 466 U.S. 668

(1984). Sherriff’s strategic decision not to pursue Bell’s violent history was

reasonable given Sherriff’s knowledge that were he to introduce evidence of Bell’s

violent history the prosecution could introduce evidence of Allen’s own criminal

background, which was significant even without the alleged juvenile conviction.

In any event, Allen was not prejudiced. Evidence of Bell’s violent history, and

presentation of an imperfect self-defense defense, rather than the alibi defense,

would not have affected the outcome. See id. at 691-92. Allen fails to take into

consideration how a jury would react to the introduction into evidence of his own

criminal background. Therefore the California Court of Appeal’s determinations

were appropriate under AEDPA. See 28 U.S.C. § 2254(d). Accordingly, under

AEDPA’s deferential standard we must affirm the California Court of Appeal’s


                                          2
denial of Allen’s 28 U.S.C. § 2254 habeas petition. See Harrington v. Richter, 131

S. Ct. 770, 788 (2011) (explaining that the standards created by Strickland and

AEDPA are both highly deferential, and when the two apply in tandem, review is

doubly so).

      AFFIRMED.




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