                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 03 2011

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

UNITED STATES OF AMERICA,                        No. 10-16318

              Plaintiff - Appellee,              D.C. Nos.    2:08-cv-00348-JAT
                                                              2:03-cr-00764-JAT-2
  v.

JOSEPH NICHOLAS FUENTES,                         MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                           Submitted October 27, 2011**
                             San Francisco, California

Before: GRABER and IKUTA, Circuit Judges, and QUIST,*** 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 Gordon J. Quist, Senior District Judge for the U.S.
District Court for Western Michigan, sitting by designation.
      The district court did not err in rejecting Fuentes’s claims that he suffered

ineffective assistance of trial counsel due to the manner in which trial counsel

handled the polygraph test. Because Fuentes freely and voluntarily stipulated to

the admissibility of the polygraph, he cannot later complain about its admissibility,

see United States v. Technic Servs., Inc., 314 F.3d 1031, 1045 (9th Cir. 2002),

overruled on other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir.

2010) (en banc) (per curiam); accordingly, objection to the admission of the results

would have been futile, see Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.

1989). Trial counsel’s decision to allow the polygraph test to go forward, and his

approach to challenging the reliability of the polygraph results, fall within the

“wide range of reasonable professional assistance” which we deem to be

reasonably effective assistance. See Strickland v. Washington, 466 U.S. 668, 689

(1984). Moreover, given the weight of the evidence against Fuentes, there is no

reasonable probability that the result of the proceedings would have been different

but for the alleged errors. See id. at 694.

      The district court did not err in rejecting Fuentes’s claim that the trial

counsel was ineffective due to an inadequate investigation because Fuentes has not

shown how the testimony of the four potential witnesses would have made a

difference in the jury’s determination. See Bragg v. Galaza, 242 F.3d 1082, 1088


                                              2
(9th Cir. 2001). Further, because Fuentes has failed to provide any indication of

how the additional testimony would affect his right to relief, the district court did

not err in declining to appoint counsel to assist in investigating these four witnesses

or to hold an evidentiary hearing. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th

Cir. 1998); United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995)

(order).

      The district court did not err in rejecting Fuentes’s claim that trial counsel

was ineffective for failing to retain an expert witness who would testify that the

victim was more likely killed for being labeled as a sex offender. We defer to such

strategic choices by trial counsel, Strickland, 466 U.S. at 689, and such testimony

would have been cumulative in any event, given that trial counsel elicited

testimony from the Government’s expert witness to the same effect. See

Clabourne v. Lewis, 64 F.3d 1373, 1382 (9th Cir. 1995).

      Finally, we decline to grant a certificate of appealability on Fuentes’s claim

of prosecutorial misconduct. The issue is procedurally defaulted because it was

not raised on direct appeal. See Bousley v. United States, 523 U.S. 614, 622

(1998). Fuentes has not shown cause or prejudice to overcome the procedural

default, and his claim of actual innocence has no factual or evidentiary support.

See id. at 623.


                                           3
AFFIRMED.




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