                                                                           FILED
                           NOT FOR PUBLICATION                             SEP 02 2014

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



                            FOR THE NINTH CIRCUIT


CHARLES M. PIPER,                                No. 10-56677

              Petitioner - Appellant,            D.C. No. 2:05-cv-05984-AHM-JC

  v.
                                                 MEMORANDUM*
DOMINGO URIBE, Jr., Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                           Submitted August 25, 2014**
                              Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and RAKOFF,
Senior District Judge.***




        *
             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).
        ***
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Charles Piper appeals the district court’s denial of his petition for habeas

corpus, brought pursuant to 28 U.S.C. § 2254.

                                           I

      Piper contends that the state courts’ rejection of his federal due process

claim—premised on the trial court’s allowance of an amendment to add a count

that had been dismissed at a preliminary hearing—was contrary to or an

unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d).

An independent review of the record reveals a reasonable justification for the state

courts’ decision. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The

preliminary hearing transcript, reviewed by the trial judge, suggests that the

dismissed count was “shown by the evidence taken at the preliminary

examination,” Cal. Penal Code § 1009; see also People v. Graff, 87 Cal. Rptr. 3d

827, 838 (Ct. App. 2009). Thus, even if we assume that § 1009 establishes a

liberty interest protected by the Fourteenth Amendment, the state courts might

reasonably have concluded that Piper was not deprived of such right in an

“arbitrary” manner. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980).

                                          II

      Piper maintains that the state courts’ rejection of his ineffective assistance of

counsel claim—premised on his counsel’s failure on appeal to challenge the


                                           2
amendment—was an unreasonable application of Strickland v. Washington, 466

U.S. 668 (1984). But because the state courts might reasonably have concluded

that the amendment did not violate state law, they might reasonably have decided

also that the failure to challenge the amendment on appeal was not constitutionally

ineffective. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001).

      AFFIRMED.




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