                                                                           FILED
                            NOT FOR PUBLICATION                              JUL 05 2013

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



                             FOR THE NINTH CIRCUIT


FAUSTINO CORONA,                                 No. 11-55390

               Petitioner - Appellant,           D.C. No. 2:08-cv-01393-ABC-
                                                 AGR
          v.

V. M. ALMAGER, Warden, Centinela                 MEMORANDUM*
State Prison,

               Respondent - Appellee.

                     Appeal from the United States District Court
                        for the Central District of California
                     Audrey B. Collins, District Judge, Presiding

                         Argued and Submitted June 5, 2013
                               Pasadena, California

Before: THOMAS, SILVERMAN and FISHER, Circuit Judges.

      Faustino Corona appeals the district court’s order dismissing his petition for

a writ of habeas corpus, which challenges his conviction for attempted,

premeditated murder. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we

affirm.



          *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Corona contends that his trial counsel, Richard Pintal, provided ineffective

assistance by failing to conduct an adequate investigation into the extent of

Corona’s intoxication at the time of the crime, failing to adequately research the

law on the voluntary intoxication defense and failing to present sufficient evidence

at trial to obtain a jury instruction on voluntary intoxication. Corona has presented

no evidence establishing the extent of Pintal’s investigation or the sufficiency of

Pintal’s legal research. The newly proffered declarations from witnesses with

information about the extent of Corona’s intoxication do not establish the

inadequacy of the investigation, because they do not establish that Pintal failed

altogether to contact pertinent witnesses or obtain comparable evidence from other

sources. We therefore cannot conclude that the state court’s dismissal of Corona’s

ineffective assistance of counsel claim was “necessarily unreasonable.” Cullen v.

Pinholster, 131 S. Ct. 1388, 1403 (2011); see also 28 U.S.C. § 2254(d).

      Given the considerable latitude trial counsel has in making tactical decisions,

see Strickland v. Washington, 466 U.S. 668, 689 (1984), Pintal’s chosen defense

strategy – exploiting the victims’ inconsistent statements in hopes of creating

reasonable doubt, rather than focusing on Corona’s intoxication – does not fall

outside the “wide range of reasonable professional assistance” deemed adequate

under the Fifth Amendment, see id.


                                          2
       Corona also suffered no prejudice from the alleged deficient representation

because the jury is unlikely to have found that Corona lacked the requisite mental

state even if the additional evidence had been presented. The jury heard ample

evidence of Corona taking purposeful, deliberate actions in his attempt to kill his

victims: he confronted his wife about another party-goer, beat her, picked up a

rifle, loaded the rifle with at least seven bullets, pointed the rifle at his wife, pulled

the trigger, pointed the rifle at his wife’s friend, pulled the trigger and had the

presence of mind to leave before the police arrived. Thus, even if Pintal had

presented the newly proffered evidence and obtained a jury instruction on

voluntary intoxication, there is not a “substantial . . . likelihood of a different

result.” Pinholster, 131 S. Ct. at 1403 (internal quotation marks omitted) (quoting

Harrington v. Richter, 131 S. Ct. 770, 791 (2011)).

       AFFIRMED.




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