                                                                                  FILED
                            NOT FOR PUBLICATION                                    FEB 29 2012

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



                            FOR THE NINTH CIRCUIT


JOHN PATRICK ROE,                                No. 10-35535

              Petitioner - Appellant,            D.C. No. 6:08-cv-01472-HO

  v.
                                                 MEMORANDUM*
RICK COURSEY,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                      Argued and Submitted February 6, 2012
                               Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

       John Patrick Roe appeals from the district court’s order denying his petition

for habeas corpus relief pursuant to 28 U.S.C. § 2254(a). Roe contends that his

trial counsel rendered ineffective assistance by failing to advise him of his

conditional right, under Oregon law, to waive a trial by jury and request a bench



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
trial. Roe also contends that the district court erred when it denied his repeated

requests to appoint habeas corpus counsel. We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253. We affirm because we conclude that the district court

did not err in rejecting Roe’s contentions.

                                           I

      Roe contends that his counsel’s performance was deficient because she had a

duty to consult with him regarding his conditional right, under Oregon law, to

waive a jury trial and request a bench trial. According to Roe, by failing to do so,

counsel acted unilaterally on a decision that was reserved to Roe and, thus, there

was no valid waiver of his right to request a bench trial.

      We review a state habeas petitioner’s “claims through the lens of AEDPA's

extremely deferential standard of review.” John-Charles v. California, 646 F.3d

1243, 1247 (9th Cir. 2011). In order to be entitled to relief, a petitioner must show

that the state court’s denial of his claim was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States . . . .” 28 U.S.C. § 2254(d). The Supreme

Court set forth the standard for ineffective assistance of counsel claims in

Strickland v. Washington, 466 U.S. 669 (1984), which requires that a petitioner

show that counsel’s performance was deficient resulting in prejudice to the

defense. Id. at 687.
       In order to establish deficient performance, a petitioner must show that

counsel’s errors were so serious that she “was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. “A court considering a

claim of ineffective assistance must apply a ‘strong presumption’ that counsel’s

representation was within the ‘wide range’ of reasonable professional assistance.”

Harrington v. Richter, -- U.S.--, 131 S. Ct. 770, 787 (2011) (quoting Strickland,

466 U.S. at 689). Though possible, it is difficult to establish ineffective assistance

based on a single error when “counsel’s overall performance indicates active and

capable advocacy.” Id. at 791.

       Roe relies on Jones v. Barnes, 463 U.S. 745 (1983), to support his

contention that he had the ultimate authority to make the “fundamental decision” of

whether to invoke his right to waive a jury trial and request a bench trial. Roe’s

reliance on Jones v. Barnes is misplaced. In Jones, the Supreme Court stated that a

defendant “has the ultimate authority to make certain fundamental decisions,” like

whether to waive a jury trial. Jones, 463 U.S. at 751 (citing Wainwright v. Sykes,

433 U.S. 72, 93 n.1 (1977) (Burger, C.J., concurring)). In this case, Roe’s counsel

did not waive his right to a jury trial.

       Roe does not have a federal constitutional right to waive a jury trial and

request a bench trial. In Singer v. U.S., 380 U.S. 24 (1965), the Supreme Court

recognized that there is no federal constitutional right to waive a jury trial. Id. at
34. Consequently, Roe was not entitled, under the federal constitution, to a bench

trial and, as a result, he was not entitled, under the federal constitution, to be

consulted regarding the right to a bench trial.

      Roe attempts to show that he was nonetheless entitled to be consulted

regarding his conditional right to waive his right to trial by jury. Roe, however,

has not shown that counsel’s failure to consult him regarding this state right

necessarily constitutes deficient performance under Strickland. Indeed, he has not

pointed to any Supreme Court precedent establishing that the failure to advise a

defendant of a state right, alone, renders counsel’s performance deficient.

      Because we conclude that Roe has not satisfied Strickland’s deficient

performance prong, we need not address the prejudice prong.

                                           II

      Roe also asserts that the district court abused its discretion by failing to

appoint counsel for his habeas corpus proceedings under § 2254(a). This issue was

not certified by the district court for our review. However, it was raised in

Appellant’s brief. We construe it as a motion to expand the certificate of

appealability and grant it pursuant to Ninth Circuit Rule 22-1(e) because “jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right . . . .” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      A state petitioner does not have a federal constitutional right to appointment
of counsel in proceedings pursuant to § 2254(a). See Anderson v. Heinze, 258 F.2d

479, 481 (9th Cir. 1958) (explaining that the Sixth Amendment right to counsel

does not apply in habeas corpus actions). In order to be entitled to appointed

counsel, a petitioner must show that the “circumstances of a particular case indicate

that appointed counsel is necessary to prevent due process violations.” Chaney v.

Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); see 18 U.S.C. § 3006A(a)(2)

(providing that a district court has discretion to appoint counsel for state habeas

corpus petitioners when it determines “that the interests of justice so require”); see

Anderson, 258 F.2d at 484 (“Except under most unusual circumstances, an attorney

ought not to be appointed by a federal court for the purpose of trying to find

something wrong with a state judgment of conviction.”). Consequently, the federal

constitutional right at issue when a district court denies a state habeas corpus

petitioner’s request for appointment of counsel is the right to due process, not the

Sixth Amendment right to counsel. Chaney, 801 F.2d at 1196.

      Here, Roe has not made a substantial showing of a denial of his federal

constitutional due process rights by the district court’s failure to appoint habeas

counsel. Roe contends that the district court should have appointed him counsel

because (1) counsel needed to conduct a factual investigation, which was

impossible for him to conduct from prison, (2) the availability of law library

resources was limited, and (3) he had no legal training and was not able to
understand the legal principles necessary to litigate the case. Roe, however, has

not shown that these obstacles, which are faced by many state habeas petitioners,

entitle him to appointment of counsel in order to avoid due process violations. See

generally LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (concluding that

district court did not abuse its discretion in failing to appoint habeas counsel where

district court pleadings showed that petitioner understood the issues and was able

to present his contentions); Knaubert v. Goldsmith, 791 F.2d 722, 729-30 (9th Cir.

1986) (finding district court did not abuse its discretion in failing to appoint habeas

counsel where no evidentiary hearing was necessary).

      AFFIRMED.
