                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 14 2010

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




                             FOR THE NINTH CIRCUIT



BRANDON S. SMITHSON,                              No. 07-36071

                Petitioner - Appellant,           D.C. No. CV-05-00467-JMST

  v.
                                                  MEMORANDUM *
GUY HALL,

                Respondent - Appellee.



                     Appeal from the United States District Court
                              for the District of Oregon
              Michael W. Mosman, United States District Judge, Presiding

                               Submitted June 11, 2010 **
                                   Portland, Oregon

Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
      Brandon S. Smithson, an Oregon state prisoner, appeals the denial of his 28

U.S.C. § 2254 habeas petition challenging his conviction by guilty plea and

sentence to 320 months imprisonment for the rape, sodomy, sexual abuse, and

attempted aggravated murder of two girls he was baby-sitting. Smithson argues

that trial counsel rendered ineffective assistance by failing to attend or cancel his

psychosexual evaluation when Smithson told him that he intended to make

incriminating statements to the psychologist. We have jurisdiction under 28

U.S.C. § 1291 and § 2253 and affirm.

      As an initial matter, the State argues that Smithson failed to exhaust his

ineffective assistance claim and that it is now procedurally defaulted. We do not

reach this issue, but resolve this case on the merits of Smithson’s ineffective

assistance claim. See 28 U.S.C. § 2254(b)(2).

      The state post-conviction court’s denial of Smithson’s post-conviction

petition was not “contrary to, or an unreasonable application of” the standard for

effective assistance claims established in Strickland v. Washington, 466 U.S. 668

(1984). 28 U.S.C. § 2254(d)(1). As the district court found, trial counsel’s advice

that Smithson undergo the evaluation but not disclose to the psychologist or an

attendant polygrapher any information regarding uncharged criminal conduct by

him was not deficient. If Smithson had followed counsel’s advice, he would have


                                           2
received a sentence of no more than 275 months, even if the district attorney made

no concession based on Smithson’s plea. Had he received a favorable evaluation,

he might have been able to negotiate a better plea offer. It was therefore entirely

reasonable for counsel to advise Smithson to submit to the evaluation but withhold

information regarding his other crimes. In addition, as the district court found,

“[i]t was not counsel’s advice that caused prejudice to [Smithson]; instead, it was

petitioner’s voluntary confession which occurred despite counsel’s advice.”

      The attorney’s decision not to cancel the evaluation was a strategy call, and

not objectively deficient performance. See Strickland, 466 U.S. at 689 (requiring

“a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance”). And even assuming that counsel’s failure to

be present with Smithson at the evaluation was objectively unreasonable, his

absence did not cause Smithson prejudice. As the district court found, given that

Smithson’s confession was voluntary, “[w]hether counsel’s attendance at the

psychosexual evaluation would have resulted in no confession is pure speculation.”




      AFFIRMED.




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