                                                                                   FILED
                            NOT FOR PUBLICATION                                    JUL 20 2011

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



                            FOR THE NINTH CIRCUIT

JERRY WAYNE SHUE, JR.,                             No. 09-15734

              Petitioner - Appellant,              D.C. No. 1:05-cv-00504-AWI-
                                                   JMD
  v.

D. K. SISTO,                                       MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Anthony W. Ishii, Chief District Judge, Presiding

                        Argued and Submitted July 14, 2011
                            San Francisco, California

Before: SILVERMAN and GRABER, Circuit Judges, and LYNN,** District
        Judge.

       Petitioner Jerry Wayne Shue, Jr., appeals from the district court’s denial of

habeas relief under 28 U.S.C. § 2241. We granted a certificate of appealability

with respect to two issues. First, Petitioner claims that the state violated its


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The Honorable Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
obligations under Brady v. Maryland, 373 U.S. 83 (1963). Second, Petitioner

claims that his lawyer rendered constitutionally deficient assistance at trial. We

review de novo the district court’s decision. Kemp v. Ryan, 638 F.3d 1245, 1254

(9th Cir. 2011). Because the California Supreme Court summarily denied

Petitioner’s state habeas petition without stating its reasons for doing so, Petitioner

bears the burden of showing that "there was no reasonable basis for the state court

to deny relief." Harrington v. Richter, 131 S. Ct. 770, 784 (2011). Because

Petitioner has failed to carry that burden, we affirm.

A.    The Brady Claim

      Petitioner first argues that the state violated Brady when it did not disclose a

witness’ prior conviction for felony welfare fraud. To establish that claim,

Petitioner must show, inter alia, "‘a reasonable probability that, had the [witness’

conviction] been disclosed to the defense, the result of the proceeding would have

been different.’" Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United

States v. Bagley, 473 U.S. 667, 682 (1985)). "A reasonable probability of a

different result is . . . shown when the government’s evidentiary suppression

undermines confidence in the outcome of the trial." Id. at 434 (internal quotation

marks omitted). In the circumstances, we hold that the California Supreme Court




                                           2
reasonably could have concluded that suppression1 of the witness’ conviction did

not undermine confidence in the outcome of the trial.

      At trial, Petitioner argued to the jury that he had committed voluntary

manslaughter, not murder, because he acted in the heat of passion while

intoxicated. The witness’ testimony somewhat supported Petitioner’s defense. She

confirmed that Petitioner had been drinking heavy liquor at the bar where she

worked since 2 p.m. on the afternoon of the murder. When she later arrived at the

bar to start her shift, she noticed that Petitioner’s eyes were dilated. She described

in detail the violent fight in which Petitioner and her husband, the victim, were

involved later that night. When Petitioner arrived at her home early the next

morning, the witness testified that Petitioner broke through her front door while

yelling profanities. That testimony did not necessarily contradict Petitioner’s

theory that he killed his victim while intoxicated and in the heat of passion. We

therefore hold that the California Supreme Court reasonably could have concluded

that, even if Petitioner had used the witness’ prior conviction to impeach her



      1
         The state argues that it did not suppress the conviction because Petitioner
could have discovered it on his own. We assume, without deciding, that the state’s
failure to advise Petitioner of the conviction constitutes "suppression" within the
meaning of the Brady rule. Even under that assumption, Petitioner’s Brady claim
fails because the California Supreme Court reasonably could have concluded that
he has not established prejudice.
                                           3
testimony, there is no reasonable probability that the trial would have turned out

differently.

B.    The Ineffective Assistance of Counsel Claim

      Petitioner similarly had to establish prejudice to succeed on his ineffective

assistance of counsel claim. Specifically, Petitioner had to show both that his

lawyer’s performance was objectively unreasonable in the circumstances and that

he was prejudiced by his lawyer’s deficient assistance. Fairbank v. Ayers, 632

F.3d 612, 617 (9th Cir. 2011). Because the witness’ testimony generally supported

Petitioner’s defense, we hold that the California Supreme Court reasonably could

have concluded that Petitioner was not prejudiced by his lawyer’s failure to

impeach the state’s witness with her prior conviction.

      Petitioner also claims that his lawyer rendered deficient assistance by failing

to impeach the witness with several prior inconsistent statements. Although the

witness’ prior statements tended to support Petitioner’s manslaughter defense, we

cannot say that any reasonable jurist would be compelled to think that Petitioner

would have been convicted of manslaughter, and not murder, had those statements

been used to impeach the witness. Richter, 131 S. Ct. at 784. Our exacting

standard of review therefore requires that we affirm.

      AFFIRMED.


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