                                                                           FILED
                           NOT FOR PUBLICATION                              APR 05 2011

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




                            FOR THE NINTH CIRCUIT



ERNEST LEE VADEN,                                No. 10-15029

              Petitioner - Appellant,            D.C. No. 2:06-cv-01733-JAM-
                                                 GGH
  v.

D. L. RUNNELS, Warden; ATTORNEY                  MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted January 10, 2011
                            San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.


       Petitioner-Appellant Ernest Lee Vaden (Vaden) challenges the district

court’s denial of his federal habeas petition. Vaden asserted a claim based on

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(1984). Additionally, Vaden raised an uncertified issue concerning the trial

judge’s failure to appoint substitute counsel to present Vaden’s claim that his trial

counsel was ineffective.




1.    We agree with the district court that the state court did not unreasonably

apply Strickland. “[A] defendant claiming ineffective counsel must show that

counsel’s actions were not supported by a reasonable strategy and that the error

was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). The state

court did not unreasonably apply Strickland, because as it observed, the medical

records were not especially probative regarding Vaden’s intoxication defense. See

Strickland, 466 U.S. at 689.




2.    The district court was correct in denying habeas relief for Vaden’s claim that

counsel was ineffective for failing to call an expert witness to support his claim of

intoxication. Assuming, without deciding, that counsel’s performance was

deficient, Vaden failed to establish prejudice, i.e., “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. As the magistrate judge noted, Vaden

did not provide a declaration from any expert to support his claim that Activan


                                           2
increased his intoxication. This lack of supporting documentation precludes a

finding of prejudice. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001).




      3.     We do not address Vaden’s uncertified claim, because he failed to

“ma[k]e a substantial showing of the denial of a constitutional right” to warrant

issuance of a certificate of appealability. Rhoades v. Henry, 598 F.3d 511, 518

(9th Cir. 2010) (citation omitted).

      AFFIRMED.




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