                                                                           FILED
                           NOT FOR PUBLICATION                               JUN 24 2010

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




                            FOR THE NINTH CIRCUIT



JASON ANTHONY BROWN,                             No. 09-35078

              Petitioner - Appellant,            D.C. No. 6:07-cv-00430-AA

  v.
                                                 MEMORANDUM *
JEAN HILL, Superintendent, Snake River
Correctional Institution,

              Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                             Submitted June 10, 2010 **
                                 Portland, Oregon

Before: THOMPSON, McKEOWN and PAEZ, Circuit Judges.

       Jason Anthony Brown, an Oregon state prisoner, appeals the district court's

denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury

conviction for sexual penetration, sexual abuse, sodomy, delivery of a controlled

        *
             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).
substance to a minor, and furnishing alcohol to a minor. The trial court sentenced

Brown to 436 months. Brown sought post-conviction relief in state court, and now

seeks federal habeas relief.

      We review de novo the district court’s decision to deny a 28 U.S.C. § 2254

habeas corpus petition, and review its factual findings for clear error. McMurtrey

v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008). Under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas may only be

granted if the state court’s decision “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.” 28 U.S.C.

§ 2254(d). The standard of review is “highly deferential . . . [and] demands that

state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (per curiam) (internal quotation marks and citation omitted).

      Brown claims his counsel was ineffective in failing to interview six potential

witnesses and in allegedly preventing him from testifying during trial. Both of

these claims fail because he cannot show that his counsel’s assistance “fell below

an objective standard of reasonableness” and that this deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 688, 691 (1984).


                                          2
       Brown submitted no evidence as to what five of the witnesses might offer,

and the sixth witness testified against him at trial. Brown only speculates that had

this sixth witness been interviewed further, he would have possibly recanted his

testimony. Brown therefore cannot demonstrate that by failing to call these

witnesses, his counsel’s conduct fell below an objective standard of reasonableness

or prejudiced his defense.

       Brown also claims that his counsel was ineffective for “preventing” him

from testifying. However, the record indicates that Brown “agreed with

[counsel’s] advice” not to testify and conceded that counsel did not refuse to let

him testify. Also, given that Brown’s testimony would be self-serving and subject

him to cross-examination, counsel’s advice was a reasonable strategy.

       Brown does not meet his burden of showing that the state court’s decision

“was contrary to, or involved an unreasonable application of, clearly established

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

of the evidence presented.” 28 U.S.C. § 2254(d). Accordingly, we deny his

petition.

       PETITION DENIED.




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