                               NOT FOR PUBLICATION                        FILED
                        UNITED STATES COURT OF APPEALS                     OCT 21 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT



 FRANK LEROY HERSHA, Jr.,                          No.    15-35145

            Petitioner-Appellant,                  D.C. 6:12-cv-02279-KI

   v.
                                                   MEMORANDUM*
 MARK JONES; KRISTIN A. WINGES-
 YANEZ,


            Respondents-Appellees.

                       Appeal from the United States District Court
                                for the District of Oregon
                         Garr M. King, District Judge, Presiding

                               Submitted October 7, 2016**
                                   Portland, Oregon

Before: O’SCANNLAIN, CLIFTON, and NGUYEN, Circuit Judges.

        Frank Hersha appeals a district court order denying his habeas corpus

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


        *
             This disposition is not appropriate for publication and is not
precedent, except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

federal habeas relief may not be granted unless the state court’s decision “was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,” 28 U.S.C. §

2254(d)(1), or was “ 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)(2).

This is a “highly deferential” standard of review, “which demands that state-court

decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19,

24 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). Where a

petitioner seeks review of a state court’s denial of claims of ineffective assistance

of counsel under Strickland v. Washington, 466 U.S. 668 (1984), our review is

“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

      The Oregon state court did not unreasonably apply clearly established law in

denying Hersha’s ineffective assistance of counsel claim. 28 U.S.C. § 2254(d).

Hersha alleges that trial counsel was ineffective in failing to call as witnesses

Dawn Bartlett and David Slay, and in failing to introduce counseling records

showing that two of the victims initially denied that they were abused by Hersha.

      The state court reasonably determined that counsel was not ineffective in her

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tactical decision not to call Dawn Bartlett as a witness, because Bartlett would

likely have testified that one of the victims was always consistent in his statements

that Hersha abused him. See Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir.

1997) (“Counsel knew about the evidence and looked into it, but chose as a tactical

matter not to use it. A reasonable tactical choice based on an adequate inquiry is

immune from attack under Strickland.”). In addition, the state court reasonably

concluded that Hersha failed to show prejudice because Bartlett’s testimony would

have been harmful.

      The state court also did not misapply or contravene federal law when it

determined that trial counsel made a reasonable effort to contact David Slay.

Counsel is “entitled to formulate a strategy that was reasonable at the time and to

balance limited resources in accord with effective trial tactics and strategies.”

Harrington v. Richter, 562 U.S. 86, 107 (2011). Here, trial counsel and her

investigator made good faith efforts to reach Slay but were unsuccessful.

      Finally, the state court reasonably determined that Hersha suffered no

prejudice as a result of the failure to introduce the counseling records. Trial

counsel had already cross-examined the victims about their inconsistent stories and




                                           3
emphasized the inconsistencies during closing argument. 1

      AFFIRMED.




      1
       Appellees’ motion to supplement the record is denied. See Lowry v.
Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (explaining that generally, “we
consider only the district court record”). Comparable facts are in the record.

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