                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 27 2013

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



                           FOR THE NINTH CIRCUIT


RIKI RASHAAD MUHAMMAD,                           No. 11-17713

              Petitioner - Appellant,            D.C. No. 2:06-cv-01036-SMM

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

              Respondents - Appellees.


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

                          Submitted February 14, 2013**
                            San Francisco, California

Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.




        *
             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).
      Arizona state prisoner Riki Rashad Muhammad appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for

murder and child abuse. In a previous appeal, the Ninth Circuit remanded the case

to the district court for an evidentiary hearing regarding ineffective assistance of

counsel. Muhammad v. White, 372 F. App'x 732 (9th Cir. 2010). After conducting

the hearing, the district court denied Muhammad’s habeas petition. We affirm.

      The parties are familiar with the facts. We review the district court’s denial

of Muhammad’s habeas petition de novo. Hibbler v. Benedetti, 693 F.3d 1140,

1145–46 (9th Cir. 2012). Because our prior decision ordered an evidentiary hearing

and therefore held that the Arizona post-conviction court violated 28 U.S.C. §

2254(d)(2), see Muhammad, 372 F. App'x at 732; see also Earp v. Ornoski, 431

F.3d 1158, 1166-67 (9th Cir. 2005), AEDPA deference does not apply, see

Hibbler, 693 F.3d at 1146. “Factual findings and credibility determinations that

were not made by the trial court but were made by the district court after an

evidentiary hearing are reviewed for clear error.” Crittenden v. Ayers, 624 F.3d

943, 954 (9th Cir. 2010).

      Muhammad contends that he was denied effective assistance of counsel

because his trial counsel incorrectly advised him that the state would need to prove

that he intentionally caused his son’s head injury or did so knowing that the


                                           2
circumstances were likely to cause death or serious injury. Muhammad asserts that

the advice he received from counsel caused him to reject an advantageous plea

offer. To establish an ineffective assistance of counsel claim, Muhammad must

show both deficient performance and prejudice. Strickland v. Washington, 466

U.S. 668, 687 (1984). Because Muhammad cannot establish prejudice, we need not

decide whether he established deficient performance.

      After holding an evidentiary hearing, the magistrate judge found that

counsel’s advice did not cause Muhammad to reject the plea offer. The district

court found that Muhammad’s refusal to plead guilty to second-degree murder or

lesser charges undermined his claim. There is no clear error in this finding. See

Earp, 431 F.3d at 1166. Muhammad’s failure to establish prejudice is fatal to his

ineffective assistance of counsel claim. See Strickland, 466 U.S. at 687.

      AFFIRMED.




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