                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          AUG 15 2014

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

MICHAEL JAMES SHUKRY,                            No. 12-15119

              Petitioner - Appellant,            D.C. No. 2:09-cv-00669-JKS

  v.
                                                 MEMORANDUM*
M. S. EVANS,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                James K. Singleton, Senior District Judge, Presiding

                           Submitted August 12, 2014**
                             San Francisco, California

Before: KOZINSKI, Chief Judge, and SILVERMAN and CLIFTON, Circuit
Judges.

       Michael James Shukry appeals from the district court’s denial of his 28

U.S.C. § 2254 petition for habeas corpus. We conclude that Shukry’s ineffective



        *
             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).
assistance of counsel claim does not survive the doubly deferential standard of

review applicable to an ineffective assistance of counsel claim under AEDPA, 28

U.S.C. § 2254(d). Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Accordingly,

we affirm.

       Shukry has not shown that the Sacramento Superior Court unreasonably

applied Strickland v. Washington, 466 U.S. 668, 687, 691 (1984), or made an

unreasonable determination of the facts of Shukry’s case when it rejected his

ineffective assistance of counsel claim. Shukry’s trial attorney’s strategic decision

to eschew the roof fall version of events as a defense theory was not professionally

deficient. It was a reasonable judgment that presenting Shukry’s third version of

events would have been unlikely to persuade the jury and would have damaged

Shukry’s credibility generally. The defense that counsel presented, though

ultimately unsuccessful, was not as implausible as Shukry now asserts. The

prosecution’s medical experts admitted that some of the boy’s injuries could have

occurred up to three days before he died, lending support to counsel’s theory that

there was doubt that the injuries were inflicted when Shukry was taking care of

him.

       Additionally, Shukry was not prejudiced by trial counsel’s decision. The

sheer number of bruises and injuries on the victim’s body corroborated strongly

                                           2
with physical assault. Given the lateness of Shukry’s roof story and the medical

experts’ unanimous conclusion that the boy was a victim of child abuse, there was

not a “reasonable probability” that the jury would have found Shukry not guilty

even if counsel had pursued the roof story. See id. at 695. At a minimum, that was

a question as to which fairminded jurists could disagree. The state court’s

adjudication of the claim was not unreasonable.

      AFFIRMED.




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