                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 21 2010

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




                            FOR THE NINTH CIRCUIT



TONY JIN KWAK,                                   No. 09-15950

              Petitioner - Appellant,            D.C. No. 1:07-cv-00534-SOM-
                                                 KSC
  v.

CLAYTON FRANK, Acting Director,                  MEMORANDUM *
Department of Public Safety, State of
Hawaii,

              Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                      Argued and Submitted October 12, 2010
                                Honolulu, Hawaii

Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.

       The district court properly denied Petitioner-Appellant Tony Jin Kwak’s

(Kwak) federal habeas petition because the Hawaii Intermediate Court of Appeals




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
made a reasonable “determination of the facts in light of the evidence presented in

the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(2).

      Trial counsel’s failure to pursue a defense theory predicated on another

person’s elbow strike, rather than Kwak’s kick as the fatal blow, was reasonably

determined to be a tactical decision. See Cheney v. Washington, 614 F.3d 987, 996

(9th Cir. 2010) (“Under Strickland [v. Washington, 466 U.S. 668 (1984)], the court

must indulge a strong presumption that counsel acted for tactical reasons rather

than through sheer neglect.” ) (citation, alteration and internal quotation marks

omitted).

      Kwak’s argument that counsel’s decision not to interview Mahealani Kaae

(Kaae) was objectively unreasonable, and could not have been tactical, fails.

“Counsel is not obligated to interview every witness personally in order to be

adjudged to have performed effectively[.]” Lord v. Wood, 184 F.3d 1083, 1095 n.8

(9th Cir. 1999) (citations omitted). Counsel reached an informed decision by

reviewing Kaae’s inconsistent statements to the police. “A claim of failure to

interview a witness may sound impressive in the abstract, but it cannot establish

ineffective assistance when the person’s account is otherwise fairly known to

defense counsel.” Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)

(citation omitted).


                                          2
      Kwak’s argument regarding counsel’s failure to secure a medical expert to

testify that an elbow strike could have caused the victim’s death is unpersuasive.

The medical examiner who performed the victim’s autopsy expressly refuted the

elbow strike theory, rendering the theory “so inherently implausible as to

undermine defense counsel’s credibility[.]” Lord, 184 F.3d at 1086.

      AFFIRMED.




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