                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 22 2010

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




                            FOR THE NINTH CIRCUIT



DONALD J. BOHANA,                                No. 08-56855

              Petitioner - Appellant,            D.C. No. 2:04-cv-03037-AHM-
                                                 MAN
  v.

TOM E. VAUGHN, Warden of the                     MEMORANDUM *
California State Prison at Chuckawalla
Valley and JEANNE S. WOODFORD,
Director California Department of
Corrections,

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                             Submitted July 12, 2010 **
                               Pasadena, California

Before: FARRIS, HALL and SILVERMAN, Circuit Judges.




        *
             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).
      Donald J. Bohana appeals the district court’s denial of his 28 U.S.C. § 2254

petition. Bohana was convicted of second degree murder in California state court.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm the

district court and decline to expand the certificate of appealability.

      We review de novo a district court’s denial of a habeas petition. Mendez v.

Knowles, 556 F.3d 757, 767 (9th Cir. 2009). We must deny the petition unless the

state court’s decision was “either (1) contrary to, or involved an unreasonable

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

of the Untied States, or (2) based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” Id.

      Bohana argues that his trial counsel provided ineffective assistance. To

show ineffective assistance of counsel, the defendant must first show that counsel’s

performance was deficient and that it prejudiced the defense . Strickland v.

Washington, 466 US. 668, 687 (1984). Deficient performance is when “counsel’s

trial performance [is] objectively unreasonable ‘under prevailing professional

norms’ and under ‘all the circumstances’ of the particular case.” Pinholster v.

Ayers, 590 F.3d 651, 664 (9th Cir. 2009) (en banc) (quoting Strickland, 466 U.S. at

687-88).




                                           2
      Bohana argues that his trial counsel, Mr. Braun, was deficient for failing to

investigate alternative defenses and for failing to inform and advise him of the

alternative defenses. We have held that “defense counsel must, ‘at a minimum,

conduct a reasonable investigation enabling him to make informed decisions about

how best to represent his client.’” Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002)

(quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)) (emphasis in

original). “A defense attorney’s failure to consider alternate defenses constitutes

deficient performance when the attorney neither conducts a reasonable

investigation nor makes a showing of strategic reasons for failing to do so.” Id.

(quotation marks and citation omitted). However, “[o]nce counsel reasonably

selects a defense, it is not deficient performance to fail to pursue alternative

defenses.” Id. at 807 (citation omitted).

      Braun’s performance was not deficient. In previous cases where we found

counsel ineffective for failing to investigate and present alternative defenses, the

defenses selected were not viable and there were multiple witnesses that counsel

failed to investigate who would have easily yielded contradictory evidence to the

selected defenses. See Johnson v. Baldwin, 114 F.3d 835, 839 (9th Cir. 1997);

Phillips v. Woodford, 267 F.3d 966, 978 (9th Cir. 2001); Rios, 299 F.3d at 806;

Sanders, 21 F.3d at 1455. Here, there were no witnesses that Braun could have


                                            3
interviewed who would have contradicted Bohana’s story. Braun read the police

reports, discussed with Bohana his version of the events, and also discussed the

plausibility of Bohana’s story with two experts, Drs. Baden and Egstrom. As

Braun aptly pointed out at the state evidentiary hearing, Bohana’s story to him was

similar to Bohana’s story to the police. Braun’s consultation with Dr. Baden was

consistent with Bohana’s story. Given Bohana’s insistence that he had not

committed any wrongdoing, it was reasonable for Braun to believe Bohana’s story

and use it. See Bean v. Calderon, 163 F.3d 1073, 1082-83 (9th Cir. 1998).

Furthermore, the viability of the defense selected bears on the reasonableness of

counsel’s actions. Turk v. White, 116 F.3d 1264, 1267 (9th Cir. 1997). Braun’s

selected defense was strong and not “incredibly lame.” See Johnson, 114 F.3d at

838.

       Bohana’s contention that he was not consulted about any alternative defense

is in conflict with the record. Braun did consult with Bohana about the alternate

defense of manslaughter based on an altercation theory. Bohana rejected

approaching the prosecution with a manslaughter plea. He consistently maintained

that it had been a rescue situation and he was innocent. Braun reasonably chose to

present the rescue defense . As there was no deficient performance, we need not

consider the prejudice prong.


                                          4
      Bohana seeks to expand the certificate of appealability to include two

uncertified issues. To expand a COA “[a] habeas petitioner’s assertion of a claim

must make a substantial showing of the denial of a constitutional right.” Mendez,

556 F.3d at 770 (quotation marks and citation omitted). Bohana has not done this.

Trial counsel’s decisions not to call the experts to testify and not to seek a

involuntary manslaughter jury instruction were both strategic choices, which are

“virtually unchallengeable.” Strickland, 466 U.S. at 690.

      AFFIRMED.




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