                                                                               FILED
                             NOT FOR PUBLICATION                               MAY 22 2015

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



                             FOR THE NINTH CIRCUIT


CARLOS ESQUIVEL,                                   No. 13-35859

               Petitioner - Appellant,             D.C. No. 1:11-cv-00030-BLW

 v.
                                                   MEMORANDUM*
AL RAMIREZ,

               Respondent - Appellee.


                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                         Argued and Submitted May 8, 2015
                                Seattle, Washington

Before: WALLACE, KLEINFELD, and GOULD, Circuit Judges.

      Petitioner Carlos Esquivel, a state prisoner, appeals from the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition. He contends that the district

court erred when it concluded that Esquivel could not show prejudice stemming

from his counsel’s failure to tell Esquivel that he had a right not to participate in a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
psychosexual evaluation (“PSE”) prior to sentencing. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253, and we affirm.

      Esquivel’s petition is governed by the Anti-terrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2254. To be eligible for habeas relief,

Esquivel must show that the Idaho courts’ adjudication of his claim “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Id. § 2254(d).

      Esquivel argues that the Idaho Court of Appeals unreasonably applied

Strickland v. Washington, 466 U.S. 668 (1984), to determine that he had not

suffered prejudice from his counsel’s deficient performance. But, as we recently

reaffirmed, we have never held that there is clearly established law applying the

Strickland standard to “sentencing in noncapital cases.” Daire v. Lattimore, 780

F.3d 1215, 1221 (9th Cir. 2015). Absent such “clearly established law,” a federal

court operating under AEDPA cannot grant relief. Id. Moreover, even if we

assume that clearly established Supreme Court law applied Strickland’s

requirements to attorney errors at sentencing in non-capital cases, we nonetheless




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would reject application of Strickland because of a lack of the required element of

prejudice for reasons that follow.

      Esquivel also argues that the Idaho court’s decision on prejudice was an

unreasonable determination of the facts. It is true that the Idaho Court of Appeals

did not examine the PSE, which was missing from the appellate record, in issuing

its decision; instead, it applied a presumption, under settled Idaho law, that missing

parts of the appellate record support the decision of the district court (here, that

there had been no prejudice). The Court of Appeals noted this issue, stating that

Esquivel bore the burden of proof, and that his “[f]ailure to include the PSE in the

appellate record precludes the complete analysis of the prejudice prong.” The

district court reasoned that “[t]his omission . . . does not make the Court of

Appeals’s fact finding unreasonable,” because the Idaho Court of Appeals made its

decisions “reasonably based on those facts that were presented” to the state court,

as required by § 2254(d)(2). We agree, and reject Esquivel’s contention.

      Even if we accept Esquivel’s argument, assume that the Idaho Court of

Appeals made an unreasonable determination of the facts, and perform a de novo

review of his claim, we would still affirm. While the record does indicate that the

sentencing judge considered the PSE, there is no evidence that such consideration

led her to increase Esquivel’s sentence. The conclusions of the PSE bolster the


                                           -3-
other evidence considered by the sentencing judge, particularly Esquivel’s denial

of culpability at trial, upon which the sentencing judge relied “very heavily.”

Esquivel contended that the child victim was being “coached” to make her

accusations, an argument that the sentencing judge specifically rejected, explaining

that the child victim had given “quite credible” testimony to state investigators.

The denial of responsibility by Esquivel was a central factor in sentencing. Even

on de novo review, we would conclude that the conclusions of the PSE, whether or

not considered by the sentencing judge, added nothing beyond further support for

other evidence in the trial record.

      AFFIRMED




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