                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 02 2011

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



                           FOR THE NINTH CIRCUIT


JOSEPH LOWELL MCELYEA, JR.,                      No. 09-15429

              Petitioner - Appellant,            D.C. No. 2:06-cv-00885-SMM

  v.
                                                 MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF ARIZONA and CHARLES L.
RYAN,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                           Submitted October 25, 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 Ninth Circuit Rule 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 Arizona state court did not unreasonably apply clearly established

Supreme Court law when it rejected Joseph Lowell McElyea’s claim that he

received ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1); see Strickland

v. Washington, 466 U.S. 668 (1984). Because there is no support in the record that

McElyea’s counsel knew or had reason to know of the arresting officers’ alleged

misconduct, the state court could reasonably determine that McElyea’s counsel did

not perform deficiently by failing to challenge the admissibility of McElyea’s

confession. See Bobby v. Van Hook, 130 S. Ct. 13, 19 (2009) (per curiam).

Further, even if counsel’s performance had been deficient, McElyea suffered no

prejudice, given that he independently testified to the contents of his post-arrest

statements at trial. See Strickland, 466 U.S. at 694.

      The district court did not err by declining to conduct an evidentiary hearing

because, even assuming McElyea made reasonable efforts to investigate and

pursue his claims in state court, 28 U.S.C. § 2254(e)(2), he has not alleged specific

facts which, if true, would entitle him to relief. See West v. Ryan, 608 F.3d 477,

485 (9th Cir. 2010), cert. denied, 131 S. Ct. 1473 (2011).

      Finally, the district court did not err in declining to hear McElyea’s untimely

objections to the magistrate judge’s report and recommendation because McElyea

neither presented sufficient evidence to overcome Rule 5(b)’s presumption of


                                          2
service, Fed. R. Civ. P. 5(b)(2)(C), nor claimed that the district court’s failure to

consider his general, untimely objection constituted a denial of a constitutional

right, Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam).

      AFFIRMED.




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