                           NOT FOR PUBLICATION                           FILED
                                                                         APR 11 2017
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 CARL LEE SIMINGTON,                             No. 15-35877

               Petitioner-Appellant,             D.C. No. 6:14-cv-01252-SI

   v.                                            MEMORANDUM*

 JEFF PREMO, Superintendent,

               Respondent-Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                      Argued and Submitted March 10, 2017
                               Portland, Oregon

Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
      Carl Lee Simington (“Simington”), an Oregon state prisoner, appeals from the

district court’s judgment and order denying his 28 U.S.C. § 2254 petition for a writ

of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review

de novo, Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir. 2014), and we affirm.

      In 2003, Simington was convicted after a bench trial of robbery in the third

degree in violation of OR. REV. STAT. § 164.395 (Count 1); and two counts of

robbery in the second degree in violation of OR. REV. STAT. § 164.405 (Counts 2 and

3). Each count was based on a separate incident, which occurred on three different

days. Simington seeks federal habeas relief from those convictions on three grounds.

      First, Simington argues that his due process right to a fair, competent tribunal

was violated because the judge who presided at his bench trial was mentally

incompetent. Simington is not entitled to habeas relief on that claim because he has

not presented “clear evidence” that the judge was mentally incompetent at the time

of his trial. See Deere v. Cullen, 718 F.3d 1124, 1147-1151 (9th Cir. 2013).

      Second, Simington contends that his right to effective assistance of counsel

was violated when his trial counsel failed to: (1) advise Simington of the trial judge’s

reputation before Simington waived a jury trial; (2) object to a witness’s in-court

identification of Simington after he was told to stand; and (3) move for a judgment

of acquittal on Count 1. 1 Even assuming that trial counsel’s performance fell below


      1
          Simington initially claimed that trial counsel had also rendered ineffective

                                            2
an objective standard of reasonableness, Simington has not shown prejudice

because: (1) Simington has not established that he would have obtained a more

favorable outcome from a different factfinder, see Hensley v. Crist, 67 F.3d 181, 185

(9th Cir. 1995); (2) Simington himself testified that he was present at the incident in

question, and (3) Simington has not established a reasonable probability that a

different result would have obtained if counsel had moved for a judgment of acquittal

on Count 1, particularly given the trial court’s statements that the State had proven

Count 1 beyond a reasonable doubt, See Premo v. Moore, 562 U.S. 115, 120-21

(2011).

      Third, Simington asserts that his due process right to a conviction based on

sufficient evidence was violated with respect to Counts 1 and 3. Although the State’s

case was not overwhelming, it was neither contrary to nor an unreasonable

application of federal law for the state court to conclude that, viewing the evidence

in the light most favorable to the prosecution, a rational trier of fact could have found

that the prosecution proved the essential elements of both counts beyond a

reasonable doubt. See Cavazos v. Smith, 565 U.S. 1, 2 (2011).

      The district court therefore properly concluded that the state court’s

determination of Simington’s claims was neither contrary to nor an unreasonable



assistance by failing to move for a judgment of acquittal on Count 3, but he later
conceded that trial counsel had made that motion.

                                           3
application of clearly established federal law, 28 U.S.C. § 2254(d)(1); Williams v.

Taylor, 529 U.S. 362, 412 (2000), nor based on an unreasonable determination of

the facts, 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 562 U.S. 86, 100 (2011).

      AFFIRMED.




                                         4
