                                                                               FILED
                                 NOT FOR PUBLICATION                            JAN 26 2011

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




                                 FOR THE NINTH CIRCUIT

 JOSE LUIS RIVERA,                                        No. 10-15078

             Petitioner - Appellant,                      D.C. No. 2:05-cv-02537-FCD-
                                                          JFM
  v.
                                                          MEMORANDUM *
 JEANNE S. WOODFORD; ATTORNEY
 GENERAL OF CALIFORNIA,

            Respondent - Appellee.




                      Appeal from the United States District Court
                          for the Eastern District of California
                  Frank C. Damrell, Jr., Senior District Judge, Presiding

                        Argued and Submitted December 8, 2010
                               San Francisco, California

Before: THOMPSON, COWEN,** and SILVERMAN, Circuit Judges.




       *
         This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
       **
          The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
      Jose Luis Rivera, who is currently serving a life sentence for felony murder

and other offenses, appeals from the District Court’s denial of his 28 U.S.C. § 2254

petition. We will affirm.

      Rivera has claimed that his trial counsel provided ineffective assistance by

failing to conduct an adequate investigation into available defenses and then to

present at trial witnesses, other evidence, and a reasonable closing argument in

support of such defenses. We nevertheless conclude that the California Court of

Appeal’s rejection of his ineffectiveness claim on prejudice grounds was neither

contrary to, nor an unreasonable application of, clearly established federal law as

determined by the United States Supreme Court. See, e.g., 28 U.S.C. § 2254(d)(1).

The case against Rivera was overwhelming. For instance, his own admissions to

the police and his girlfriend supported his conviction for first-degree felony

murder, second-degree robbery, carjacking, and the jury’s finding true the special

circumstance allegations that the murder occurred during the commission of a

robbery and a carjacking. Under the circumstances, it was not unreasonable for the

state court to conclude that Rivera failed to establish that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

694 (1984).


                                           2
      We do note that prejudice is presumed in certain narrow circumstances, such

as “if the accused is denied counsel at a critical stage of his trial” or “if counsel

entirely fails to subject the prosecution’s case to meaningful adversarial testing.”

United States v. Cronic, 466 U.S. 648, 659 (1984) (footnote omitted). However,

the United States Supreme Court characterized the difference between Strickland

and Cronic arguments as one “not of degree but of kind.” Bell v. Cone, 535 U.S.

685, 697 (2002) (footnote omitted). Accordingly, Rivera’s new Cronic claim must

be rejected because he never presented such a claim to either the state courts, the

Magistrate Judge, or the District Court (and therefore any such claim has never

been certified for appeal). See, e.g., 28 U.S.C. §§ 2253(c)(1)(A), 2254(b)(1)(A);

Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir. 1997). In any event, we must

reject his claim as without merit because the trial counsel’s apparent deficiencies

did not rise to the level required by Cronic (e.g., the trial counsel still managed to

raise a number of objections, subjected several witnesses to cross-examination, and

provided a relatively lengthy closing argument addressing the crucial notion of a

“plan”).

      AFFIRMED.




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